Dáil debates

Tuesday, 12 February 2008

3:00 pm

Photo of Enda KennyEnda Kenny (Mayo, Fine Gael)
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For many months we have listened to statements from the Taoiseach and his Ministers claiming the Mahon tribunal should be allowed to do its work expeditiously at as little cost as possible and that we should all await its findings. We heard repeated claims from the Taoiseach that he co-operated fully with the tribunal, that he wants to do so and that he sent it comprehensive records in so far as his financial and tax affairs were concerned.

Recently, the House was presented with a Government amendment to a motion of confidence in the tribunal that it was acting independently and without bias and should be allowed to do its work within this context. During this time, little were we aware the Taoiseach and his legal team were cooking up an attempt to make a legal challenge which aims to delay the tribunal and prevent it from asking relevant and important questions.

Against this background where the Taoiseach has created another media frenzy, I wish to ask three questions. Has the Taoiseach misled the Dáil in any of his previous comments or answers with regard to the Mahon tribunal or his contacts with the Revenue Commissioners?

Under Article 15.12 of the Constitution, it is the Taoiseach's responsibility to identify the specific utterances and statements he seeks to prevent the tribunal from questioning. What are these statements and utterances?

When the Cabinet sat down to discuss the motion of confidence in the Mahon tribunal tabled by Fine Gael it discussed an amendment to the motion of confidence. It is perfectly obvious the claim the Taoiseach lodged yesterday had been in preparation for a considerable time. During the course of discussions on the motion of confidence, did the Taoiseach make his party colleagues and hapless supporters in Cabinet aware of his intent and preparations for the launching of a legal challenge to the tribunal?

Photo of Bertie AhernBertie Ahern (Dublin Central, Fianna Fail)
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On the first question of whether I have misled the Dáil, the Mahon tribunal or the Revenue, "No" is the answer. On the utterances I have made here in the House and on the issue of confidence, I have no difficulty in reconciling my support for the Government's motion expressing confidence in the Mahon tribunal and my decision to seek a judicial review on certain procedural issues. On the issue of my legal advice and the drafting of motions, it would be totally inappropriate for me to list this.

I have clear legal advice from my legal team that it would not be correct for me as a Deputy and as Taoiseach to answer questions on statements I have made in the Dáil. It is a separation of powers issue and one of constitutional importance. As Taoiseach I cannot and will not ignore it.

I have no problems in answering questions about the numerous statements that I have made outside the Dáil on these matters or the extensive correspondence I have had with the tribunal on them. I have done so, not just here in the Dáil, but in the tribunal and the media in the wider public domain.

The substance of everything I have said in the Dáil has been repeated outside of it. I have dealt with any questions arising from those statements. I have no problem with anything I have said in the Dáil. I have heard some speculate that I am trying to conceal or hide something I said. That is nonsense. Everyone has access to the Dáil record. They can read it, if they wish, and make up their minds. For the record, I stand over everything I have said in the House.

The point in this case is that my legal team has told me that as a Deputy and a constitutional officer, I may be in conflict with the provisions of the Constitution by submitting myself to questions on my Dáil statements. The point has been made to the tribunal and the courts will now adjudicate on the matter.

My advice is as follows. Article 15.13 provides that Members of the Dáil "shall not, in respect of any utterance in either House, be amenable to any court or any authority other than the House itself." This also applies to the Seanad. It is the duty of each Member of the Dáil and Seanad to uphold this constitutional provision that is fundamentally based on the separation of powers. No court or tribunal can examine or challenge a Member of the Dáil on his or her utterances in the Dáil. It is not permissible to cross-examine a Member on statements in the Dáil either in court or before any tribunal. The Attorney General v. Hamilton and Howlin v. Morris are clear examples of the many cases in which Members of the Dáil have sought to uphold Dáil privilege before the courts in respect of actions and tribunals. Questions posed of a Taoiseach must be treated in exactly the same way. There is arguably a greater duty for the Taoiseach, as Head of Government, to ensure the Constitution is complied with. The only way in which this fundamental constitutional principle can be vindicated is by way of legal proceedings before the courts. No other mechanism exists for its resolution. Such proceedings raise an issue of significant constitutional importance and will seek to uphold the status of parliamentary privilege which has existed for imperative legal reasons since the foundation of the State. That is the basis of the advice I received.

I always listen carefully to what Deputy Kenny says outside the Dáil. Eminent legal people have advised me that the tribunal is required as a matter of law to conduct its hearing in a manner which respects legal rights. I am entitled to assert and rely upon those legal rights. Other Deputies have done so in the past; the records are full of such cases where they have asserted the same privilege. It is vital for the Houses of the Oireachtas that this constitutional privilege is respected.

If citizens were not able to keep confidential their preparations for a legal hearing or communication with a witness, then legal representation would be seriously impaired. No tribunal in the past has ever questioned a person's right to this legal professional privilege.

I made this case in writing to the tribunal. I thought I could have avoided this course of action and the tribunal would recognise the precedence and arguments made by legal team. The tribunal did not do so. Yesterday was the final day and I had to take the advice I was given. I stand by it. It has nothing to do with answering questions.

Photo of Paul KehoePaul Kehoe (Wexford, Fine Gael)
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Will the Taoiseach answer the question he was asked?

Photo of Enda KennyEnda Kenny (Mayo, Fine Gael)
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The Taoiseach is wrong on two counts. First, Article 15.13 of the Constitution refers to not being amenable to any other authority; Article 15.12 refers to privilege. Second, the Taoiseach is not obliged to take anyone's legal advice. He is a client. His legal team should be quite prepared to set a number of options in front of him. The Taoiseach is then fully entitled to say he does not accept the advice or wishes to take another course. However, he has not done that.

On 27 September 2006, the Taoiseach told the Dáil that he had checked with the tax authorities long ago. In the light of discoveries and comments since, does he still stand by that statement? Did I hear the Taoiseach correctly, that he had not misled the Dáil on this or any other count?

The Taoiseach cannot have this both ways. He has occupied the chair opposite as Head of Government for over ten years, properly elected and duly appointed. He does not speak from that position as a private citizen but as Head of Government and Taoiseach. He is now seeking to prevent the Mahon tribunal from asking him questions on statements he made in the House. I cannot predict when the court hearing will take place or its outcome. As a practising politician, however, I know the Taoiseach is answerable and accountable to this House for statements he makes in it.

What are the statements made during 2006, or whenever, that the Taoiseach is concerned about and does not want the tribunal to question him on? That is his responsibility under the articles he mentioned.

When the Taoiseach made statements on certain matters in the Chamber in 2006, the tribunal subsequently wrote to him. His legal team responded and engaged with the tribunal. At that time the Taoiseach or his legal team had no point of principle to discuss and had no difficulty with privilege. Why has this difficulty arisen now? Why all of a sudden is there a point of privilege and a point beyond which the Taoiseach does not want to go?

This is the Taoiseach's second pre-emptive strike against the Mahon tribunal. The first was when he said it would be wrong for a tribunal to run during a general election. Four days after that, the opening statement of the tribunal clearly contradicted the Taoiseach's evidence on bank accounts.

This legal challenge is another pre-emptive strike. The Taoiseach says he now accepts his legal team's advice that he should not be asked questions on particular issues on which he made statements in the House. Why has this arisen all of sudden? What is it that he fears? Is there something in some of those statements that the Taoiseach does not want to be questioned about? I do not have the answer to that. The Taoiseach does.

What does the Taoiseach want out of this legal challenge? Let the court decide as it will. The Taoiseach sits there expecting the people to believe there is nothing going on. What are these statements — or utterances as they call them — that the Taoiseach does not want the tribunal to question him about? Of what is he afraid? He said he wants to co-operate fully with the tribunal and answer all questions comprehensively.

He had no difficulty with privilege in 2006 when his legal team engaged with the tribunal but now, all of a sudden, there is a blockage. The outcome of this challenge, whenever it may be in the High Court or Supreme Court, will delay the tribunal and add to its costs. It means there is something in there that the Taoiseach does not want the tribunal people to question him about. That means, in layman's terms, that there is an attempt here to constrict, restrain and obstruct the tribunal from asking the Taoiseach questions about statements he made in the House. However, he is at least accountable to the House on these issues, irrespective of the judgment of the court in due course. I ask the Taoiseach again to explain what those statements are so the Dáil may hear how he can be held accountable to this body, to which he was properly elected and duly appointed as head of Government.

Photo of Bertie AhernBertie Ahern (Dublin Central, Fianna Fail)
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Deputy Kenny is right on that point. I am accountable to this House. To be clear, I am not changing, withdrawing or amending anything I said in the House. The answer to the Deputy's direct and fair question about whether there is something I am concerned or worried about is no — absolutely nothing whatsoever. In the Deputy's other main question, he was wrong in stating that we did not raise these issues with the tribunal at the time. That is incorrect. At the time when I answered questions in the House for several days, the tribunal's representatives wrote to my legal team, which, in reply, quoted Article 13.15 of the Constitution and made the issue absolutely clear. These issues were also dealt with in subsequent correspondence. It is not that I cannot have it two ways. That is an unfair way to put it. I have, for the last number of years, dealt with all of the issues put to me in this House. I have answered questions on the tribunal endlessly, more than on any other issue. We have used more Leaders' Questions time on this matter than on any other, which is to be regretted by all of us. I have answered to the media in an unrestricted way. I deal with the media every day, or at least 95% of the time. I have also dealt with this in the tribunal.

The position is this. I have been told from day one by eminent legal people that Article 15.13 is clear and definite. It says Members shall not — I emphasise the term "shall not" — be made amenable before any court or tribunal in respect of any utterance made in either House. I do not accept there is any contradiction in anything I said in one forum or the other. That is not the point. It is quite clear that the tribunal does not have the right to ask Deputies or Senators about anything they said in either House. In my case, there is plenty of scope for obtaining information on what I have said, because I have spoken in so many forums and on so many programmes. I made a comprehensive statement during the general election campaign, which was unprecedented. All the information is there. However, the tribunal wished to follow this route. I am advised that this is unconstitutional, that the tribunal is violating the Constitution. I am not prepared as a Member of the House, nor should any Member, to accept what I am advised by eminent legal people whom we all respect is not the correct procedure. I am not above or below the law, and neither is the tribunal.

Photo of Brian HayesBrian Hayes (Dublin South West, Fine Gael)
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We should be grateful.

Photo of Eamon GilmoreEamon Gilmore (Dún Laoghaire, Labour)
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It seems the Taoiseach is now trying to elevate to the status of a constitutional principle his personal act of political self-preservation, which is what the trek to the High Court was about yesterday. It is a bit much to have him come in here and try to convince us he is doing this on our behalf to protect parliamentary privilege. The Taoiseach is doing this on his own behalf. Secondly, there is precedent for Members being questioned about what they say in the House. Former Deputies Charles Haughey and Albert Reynolds were questioned about statements they made in the House, as were former Deputies Des O'Malley, Dick Spring and Deputy Rabbitte. Several Members have been questioned about things they said here. It is not correct to equate the Howlin case with what is happening here. Deputy Howlin, as well as the other Deputies involved in cases being spun yesterday, went to court to protect the confidentiality of the sources of information they received. The Taoiseach is going to court to protect the confidentiality of the sources of money he received.

This is not about protecting parliamentary privilege. It is about pleading the Fifth. In doing so, the Taoiseach is adding to the delay in the tribunal. The Taoiseach today quoted eminent legal advice he had received, and we heard eminent legal opinion this morning that this would add six months to the proceedings of a tribunal which we all dearly wish would come to a conclusion sooner and at considerably less cost. We must remember that the reason this tribunal is going on for so long is that every time it was about to find out anything of substance, some key witness went to court to mount a legal challenge against it, just as the Taoiseach is doing on this occasion.

I put it to the Taoiseach that he is going to court either because he is playing for time or because he is trying to hide something. What did he say in the House about which he does not want the tribunal to ask questions? Could it be, for example, the statement he made here on 27 September 2006: "I paid capital gains tax and gift tax. It is not appropriate for me to spell out what I paid"? Alternatively, was it the response he gave to Deputy Rabbitte on the same day when he said: "Deputy Rabbitte asked me earlier whether there was documentation on the circumstances of these loans from the individuals concerned. There is comprehensive documentation and it is with the tribunal as well."? Are these the things he is concerned about? Are these the things about which he does not want the tribunal to ask? The Taoiseach is trying to have it both ways. He does not want us here in the Dáil to ask him questions about things he says before the tribunal, and now he does not want the tribunal to ask him about things he said in the Dáil.

Photo of Bertie AhernBertie Ahern (Dublin Central, Fianna Fail)
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I did pay capital gains tax and gift tax, and I provided all the details on those issues. I gave comprehensive reports. Not only that, but all the people involved went before the tribunal, gave their evidence under oath and were cross-examined. All these issues have been dealt with. Deputy Gilmore can say, from a political point, that it is not a constitutional issue, but that is not the advice I have received. In the Attorney General v. Hamilton case, former Chief Justice Thomas Finlay stated: "the attempt to compel [Deputies Dick Spring, Pat Rabbitte and Tomás MacGiolla] to answer questions before the Tribunal is an attempt to make them amenable to an authority other than the Dáil". He also stated: "This is precisely the conduct which is outlawed by the express provisions of Article 15.13 of the Constitution, and the jurisdiction of the tribunal to compel answers to those questions was accordingly ousted". This is a case in which three Deputies were seeking to rely on the protection of utterances in the House. Away back, when the terms of reference were built into utterances in the House, it was dealt with in a different way. In the Hamilton case, counsel for Dick Spring argued that Article 15.13 must be construed in accordance with the fundamental principles of democracy in order to enable Members of the Oireachtas to exercise their freedom of speech. Parliamentary privilege is enshrined in Article 15.13 of the Constitution, but the reality is it is far older than that. Many argued that Members of the Dáil and Seanad should have the absolute right to free speech so they would not have to look over their shoulders.

I have answered these questions in the House, outside the House and in the tribunal. However, what is not allowed in the Constitution — I have been advised and I have checked this carefully over a long period, because I tried to avoid taking any action — is that it was wrong for me to do this.

I heard Deputy Gilmore on the radio this morning saying he was not disputing a person's right to go to court if he or she thought a tribunal was going too far. I accept this. However, I am sure he recognises that I am only doing what two former members of his own party — three, if he includes his previous party — have done. I am entitled to do so. Perhaps, for political reasons, Members will want to say that this is not in defence of Article 15.13. I am well able to look after myself. I am well able to deal with the learned members of the tribunal and I have been doing it for a long time.

Photo of John DeasyJohn Deasy (Waterford, Fine Gael)
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Whose fault is that?

Photo of Bertie AhernBertie Ahern (Dublin Central, Fianna Fail)
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My legal team will deal with the correspondence. However, when I am told by eminent legal people that something is improper, and that the only way to test this is in court, I do not have any other alternative. As Deputy Kenny said, this issue has not just jumped out but has been in circulation since September 2006 that if the tribunal did not change its procedure I would have to deal with it in another way, as other Deputies have done. The same is true in respect of documentation. The tribunal is free to continue to question me and there is no reason for any delay. I am due to appear before the tribunal next week. There is no reason for it to delay that. This concerns one issue. The tribunal is free to continue questioning me so there has been no delaying of its work. What the tribunal is not free to do, based on the advice received by me, is to insist on asking me to go outside the constitutional provision or to insist that I put before it documents to which it knows it has no right or to which it ought to have no right. This is what I have been advised and I cannot go outside that advice.

Photo of Eamon GilmoreEamon Gilmore (Dún Laoghaire, Labour)
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The Taoiseach appears to have a very interesting relationship with his lawyers. It appears from his presentation that it is a question of his legal team telling him what to do rather than him directing it, as would be the case with most clients.

I wish to correct him in respect of the cases brought by former Deputies Spring and MacGiolla and Deputy Rabbitte. In those cases, the issue was that the Deputies were supplied with information which formed the basis of statements they made in this House.

Photo of Ruairi QuinnRuairi Quinn (Dublin South East, Labour)
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Exactly.

Photo of Eamon GilmoreEamon Gilmore (Dún Laoghaire, Labour)
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The beef tribunal attempted to get the three Deputies to state before it the source of that information. One case involved a senior banker. The Deputies went to court to protect the identity of their sources. If the Taoiseach is using this parallel, whose identity is he going to court to protect? There is a significant difference between seeking to protect confidentiality about sources of information and seeking to protect confidentiality about sources of payments. This analogy does not hold.

I repeat that the Taoiseach's legal challenge to the tribunal has nothing to do with parliamentary privilege. It is about protecting himself. If there was an issue about parliamentary privilege, that could have been dealt with at any time by the Taoiseach and his Government by way of an amendment to the terms of reference of the tribunal. This last minute rush to the court is about playing for time, delaying the tribunal even further, adding to its costs and preventing it from asking the Taoiseach about things he said in the Dáil.

Photo of Bertie AhernBertie Ahern (Dublin Central, Fianna Fail)
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Deputy Gilmore is wrong. It is not about protecting myself. It is about respecting the Constitution and the law.

Photo of Paul KehoePaul Kehoe (Wexford, Fine Gael)
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Mé féin.

Photo of Bertie AhernBertie Ahern (Dublin Central, Fianna Fail)
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In those cases, the Deputies attempted to make expansive use of Article 15.13 of the Constitution. I am far less ambitious. I am only saying plainly that the Constitution should be enforced. The former Tánaiste, Dick Spring, and his counsel argued in the Supreme Court that Article 15.13:

protects all that is said in the House. The object of the privilege is to protect Members of Parliament both inside and outside the House and in their dealings with the public. The common thread in these cases is that Parliament needs to be protected from exposure to other arms of the State.

That was the entire case. It was not about what they were or were not doing. I understand that Deputy Gilmore must ask political questions. I have no difficulty answering any questions in the tribunal which have all been aired in articles in newspapers and endless lists but I will not answer those questions based on circulated documents that are uttered in this House. That was made clear to the tribunal in the autumn of 2006. I would have thought that the tribunal would have seen that point in the extensive legal arguments made by my legal team up to the last date. The tribunal did not see the point even though it had been made over a period of almost 16 or 17 months. I was then left with no option but to follow the clear advice I received. That advice is that I must stand by Article 15.13 of the Constitution.