Wednesday, 28 January 2015
Order of Business
It is proposed to take No. 25a, motion re proposed approval by Dáil Éireann of draft Commission of Investigation (Certain Matters relative to the Cavan-Monaghan Division of the Garda Síochána) Order 2014; No. 50, Irish Collective Asset-management Vehicles Bill 2014 - Order for Report, Report and Final Stages; No. 8, Redress for Women Resident in Certain Institutions Bill 2014 - Order for Second Stage and Second Stage; and No. 51, motion re proposed approval by Dáil Éireann of the draft Commission of Investigation (Mother and Baby Homes and Certain Related Matters) Order 2015 (resumed).
It is proposed, notwithstanding anything in Standing Orders, that: (1) in the event a division is in progress at the time fixed for taking Private Members' business, the Dáil shall sit later than 9 p.m. and Private Members' business, which shall be No. 189 – motion re housing affordability (resumed), shall, if not previously concluded, be brought to a conclusion after 90 minutes; (2) No. 25ashall be decided without debate; and (3) the resumed proceedings on No. 51 shall be taken at 5.30 p.m. and shall, if not previously concluded, be brought to a conclusion at 7.30 p.m. Tomorrow's business after Oral Questions shall be No. 8 - Redress for Women Resident in Certain Institutions Bill 2014 - Second Stage (resumed).
I find it extraordinary and almost unprecedented that the House is being asked to set up a very serious commission of investigation into matters of grave concern in regard to the administration of justice in this country, issues that have led to the resignations of a confidential recipient to a Minister, a Garda Commissioner and a Minister for Justice who, in a letter to the Taoiseach, said he was resigning because he wanted to spare the Government embarrassment in advance of the local and European elections. The Guerin report outlined in considerable detail the senior counsel's assessment of issues that had been raised by whistleblower Maurice McCabe. The Taoiseach asked Mr. Guerin to consider those assertions and allegations, and the outcome of that was a recommendation by Mr. Guerin to establish a commission of inquiry and now we are being told that this House cannot debate, comment on or contribute in any shape or form to the terms of reference or to the establishment of that inquiry. I find it extraordinary.
I am told that the Ceann Comhairle has issued this, and the Taoiseach confirmed that with me last evening. It has been confirmed to us that he invoked Standing Order 57(2) in regard to this issue. I would appreciate it, a Leas-Cheann Comhairle, if our side of the House and our party could be given a written statement outlining the rationale for the invocation of this particular Standing Order. Did the Ceann Comhairle receive correspondence from any Member or from any individual asking that this debate would not proceed? I would like that confirmed; I do not know. I have read Standing Order 57(2) and it states that a matter may not be raised where it relates to a case where notice has been served and which is to be heard before a jury or is then being heard before a jury. I am not aware of any case that is being heard before a jury. I believe there is a case via sworn affidavit or a High Court referral as well in terms of juridical review, but I am not aware of any case before a jury so we need an explanation as to the rationale behind the Ceann Comhairle's decision to invoke Standing Order 57(2), which essentially muzzles this House. This is more than just the debate itself. It is about the status of this Parliament. It seems extraordinary that the Parliament is going to proceed with establishing an inquiry into issues of the most fundamental concern about the administration of justice and there will be no debate. It is incredible.
I ask myself the question: how was the banking inquiry established? I am glad it is established but it is my understanding that there are criminal cases due to come in regard to matters pertaining to banking, for example, which perhaps will go before a jury and there was no invocation of Standing Order 57(2), nor would I want it to be invoked because I want that inquiry to proceed, but it appears there is an inconsistency in the application of Standing Order 57(2) in this particular case given other matters.
I accept that the Taoiseach or the Government has not been involved in this and I would be of the view that the Minister would welcome a debate on the establishment of this commission of investigation. We have tabled an amendment, and I know Deputy Wallace and others have tabled an amendment but, extraordinarily, we will not be able to speak to those amendments. It is bizarre and unacceptable.
I ask the Taoiseach to withdraw the motion until next week and until all parties in the House can engage with the Ceann Comhairle's office to determine the basis for the invocation of Standing Order 57(2) and if we can bring about a situation next week where the motion can be put to the House but subject to a proper debate. I accept I only wrote to the Taoiseach prior to our coming into the House. He would not have received the letter formally asking him to withdraw this motion to allow for proper consideration by the House because it goes to the heart of what a Parliament is about.
We must remember that these issues originated in this Parliament, in the Dáil. They were debated at great length by various Deputies from different strands of opinion on these issues for 12 to 18 months. The culmination of all of that is the establishment of the inquiry and it seems incredible that the Dáil will not have an opportunity to debate the terms of reference of that inquiry, the reasons behind the establishment of the inquiry and what people would like to see emerge from it.
I want to say that we are not taking issue with the Ceann Comhairle. The Ceann Comhairle has a responsibility to bring a matter to the attention of the Government but I object strongly to the decision to scrap today's proposed debate into the inquiry into incidents in the Cavan-Monaghan Garda division. We got an e-mail from the Taoiseach's Department, so our issue is with the Taoiseach. It states:
We have been advised that the Ceann Comhairle has indicated that, while the draft Commission of Investigation ... can be moved tomorrow, there can be no Debate re same, as it would be in conflict with Standing Orders 57, as the matter is currently sub judice.The Government had a number of options it could have employed in response to that letter.
It is a hugely important matter. The claims of Garda whistleblowers and the handling of their allegations of wrongdoing by some members of An Garda Síochána and particularly by some Ministers, including the Minister for Justice and Equality, were and remain to be matters of huge public concern. There has been no real explanation for why we are told we cannot debate these issues, and that is not good enough.
My understanding of "sub judice" is that it applies in cases involving juries, and there is none in this case. It is also understood that sub judicedoes not apply in cases that are heard before judges, and especially High Court or Supreme Court judges.
There were no similar concerns raised about sub judicewhen, for example, the Fianna Fáil leader named Padraic Wilson, a private citizen, in this Chamber despite the fact that Mr. Wilson's solicitor was writing to the Ceann Comhairle, the Taoiseach and the Fianna Fáil leader and despite the fact that he was subject at that time to a judicial inquiry. It appears, therefore, that the sub judicerule is not being equally or appropriately applied.
Was Teachta Shatter or anyone acting on his behalf in touch with the Ceann Comhairle, the Taoiseach or anyone else in the Oireachtas? Did the Taoiseach seek an opinion from the Attorney General? Had the High Court judge or judges in question requested that no debate or statements take place? I ask the Taoiseach to reverse this decision and ensure that this debate is put back onto the Order Paper and rearranged as quickly as possible.
This is a matter of considerable importance. The Government decided, following the receipt of the Guerin report into matters relevant to the Cavan-Monaghan Garda district, that there should be a commission of investigation. The Government considered this and accepted the terms of reference as put forward by Mr. Guerin, and they are all included in the terms of reference setting up this commission.
The Government was happy to have a debate on the terms of reference. However, the Deputies have to understand that the Ceann Comhairle, in his independence, rules in respect of the Standing Orders of the House. The Ceann Comhairle wrote to the Minister for Justice and Equality on 27 January pointing out a number of relevant matters. The Ceann Comhairle pointed out to the Minister that the overall purpose of Standing Order 57 is to facilitate matters of public importance, even where court proceedings have been initiated.
He pointed out in his letter that they are subject to five conditions which are relevant to Standing Order 57. He further pointed out that in pursuance of that Standing Order, he as Ceann Comhairle has the power to allow or disallow a debate on a matter that is sub judice. The Ceann Comhairle considered the matter very carefully. He considered the text of the motion tabled by the Minister for Justice and Equality, as set out. He formed the view that the motion fell within the scope of Standing Order 57, specifically Standing Order 57(3), of which Deputies will be aware.
The Ceann Comhairle pointed out to the Minister that he had come to the conclusion that the motion was not in order for debate and that he would intend to rule accordingly if the arrangement for debating the motion was to be persisted with. He went on to say he was quite prepared to allow the motion to be moved without debate as this would obviate any risk of encroachment by Dáil Éireann on the functions of the court, which is the relevant issue under Standing Order 57(3). He went on to point out the necessity to respect the separation of powers established in Article 6 of the Constitution and to suggest that the Minister should understand the basis for his decision.
I received the letter from Deputy Martin at 12.38 p.m. today. That is just a while ago. Deputy Martin pointed out that he was respectfully requesting that the motion be withdrawn until a debate on its contents could take place. The point is that the Ceann Comhairle, in his independence, has ruled here in respect of Standing Orders that he considers that a debate on the terms of reference cannot take place. For that reason, it is not a case of withdrawing the motion tabled by the Minister for Justice and Equality to set up the Guerin inquiry. The Ceann Comhairle has ruled independently that a debate cannot take place. That is his interpretation of Standing Order 57(3).
Deputy Adams made the point that he is not taking issue with the Ceann Comhairle. Neither am I. The Ceann Comhairle is completely independent in his rulings on the Standing Orders of the House. The Government set out to set up the Guerin inquiry and to have debates on the terms of reference. They are there for everybody. There is no point in withdrawing the motion as the Ceann Comhairle has ruled that no debate can take place because of Standing Order 57(3), which he considers to be infringed on by the terms of reference. As Deputies are aware, it is not a case of an argument here about the Government not wanting this to happen, or not wishing not to have a commission of investigation.
The Ceann Comhairle has ruled here. He is the sole interpreter, in his independence, of the Standing Orders of the House. I regret from that point of view that it is not possible to have a debate on this. Therefore, I wish to set up the Guerin inquiry, in accordance with the terms of reference that have been set out, so that it can set about its work in dealing with the matters brought to light by the sergeant involved in the Garda district involved.
The Taoiseach indicated to me last night that it is of relevance that this matter is not before a jury. The situation is somewhat difficult to comprehend. Standing Order 57(2) relates to juries, whereas Standing Order 57(3)-----
The implication yesterday was that this related to Standing Order 57(2). We have received no correspondence from the Ceann Comhairle's office. I just want to raise that point. I am saying to the Leas-Cheann Comhairle, as the person in the Chair, that I do not think it is good enough, on a matter of such substance, that no one saw the letter that was written to the Minister before it was read out now.
Sorry. We have not got it. I am just saying I think it is not good enough, in terms of the Parliament. All the issues pertaining to this have been going on for a year and a half. A ruling was made but it was not communicated to the Members of the House. I understand there is a tradition of the Ceann Comhairle communicating to the Government Whip, who in turn communicates to the other Whips. There has been no substantive communication of that kind to the Opposition Whips or indeed the Opposition Members. It makes a complete farce of how Parliament works and how the Dáil is meant to work. I think there is every reason to withdraw the motion this week, to allow discussions with the Ceann Comhairle on this and to get some understanding of his rationale. I would like to hear why. The point that has been made in this instance beggars belief in the context of the banking inquiry. There is no logical consistency between that decision and this decision.
In the case of the banking inquiry, there is a potential for criminal cases which would involve juries down the line. The Taoiseach is well aware of that. No such potential exists in this case. There is a suggestion that Guerin may have caused the resignation of a Minister. That is not correct because the former Minister said he resigned because he did not want to embarrass the Government parties at the time. Standing Order 57(3) provides that "a matter shall not be raised in such an overt manner so that it appears to be an attempt by the Dáil to encroach on the functions of the Courts or a Judicial Tribunal". That is general.
It is not logical to allow someone to table a motion and then prevent them from speaking to the motion. There is no logic to that. If the Government thought the establishment of this inquiry encroached upon the courts, it would not have brought forward this motion. Of course that would have been unacceptable. My humble opinion is that there is no logic here. Perhaps what we were told yesterday was based on a brief communication that had been received by the Whip. It is very unsatisfactory. In light of the manner in which the Dáil is being treated, I ask the Taoiseach to withdraw formally the motion. I am asking for a week to be provided, until next Tuesday, so that the courtesy of proper communication with the House would at least be entered into.
No one had any warning of this. As late as the middle of last week, this matter was tabled for yesterday. When it was pulled yesterday, rumours went around that this had been done because of some issues with the invocation of Standing Orders. There has been absolutely no communication with any Member of the House on this side about why there could be no debate. Now the Government is asking us to accept a farcical situation in which we vote through the terms of reference with no debate, before voting on amendments with no debate either. I think it does a great disservice to the House. It is not the intention of this House to encroach on the courts. I believe democracy and parliamentary democracy demand that this House be in a position to debate these grave issues, which go to the heart of the administration of justice.
We were alerted to this issue when Deputy Wallace raised it yesterday. I just picked this up as I was sitting here. It was clear to me that it was a serious matter. This is another case of the Government not handling an issue properly. I am sure the Minister wants the debate to go ahead. I am sure that is the case, but it strikes me that the stopping of the debate is denying us the right to say whatever we want about these matters.
I would like to examine the logic of what we are being told. In my remarks earlier, I said that "the claims of Garda whistleblowers and the handling of their allegations of wrongdoing by some members of An Garda Síochána" were appallingly handled by some Ministers, including the then Minister for Justice and Equality, Deputy Shatter. It could be argued that the judgment I made on the former Minister's handling of this issue was sub judice. I do not want to repeat what I said previously. I want to make the case that a different rule was applied in another case in which legal advice had been given on behalf of a private citizen. When the proceedings in question proceeded here, that citizen - Padraic Wilson - was named here.
I also asked the Taoiseach whether Deputy Shatter or anyone acting on his behalf had been in touch with the Oireachtas and the Ceann Comhairle or whether the High Court or Supreme Court judges in question had requested that no debate or statements take place.
According to the letter from the Taoiseach's Department on behalf of the Chief Whip, it had been advised that the Ceann Comhairle had "indicated". The Taoiseach stated that the Ceann Comhairle had ruled. The simple solution would have been to postpone this debate until next week so that it might be held as quickly as possible. This is the wrong way to handle the issue.
As to having the letter read to us now because we have raised it, what about transparency and changing the way politics works? If we had not raised this issue, we would not have had the letter read to us and we would not have been given the reasons, regardless of whether we agree with them, cited by the Ceann Comhairle. Once again, the Government needs to get its act together in terms of how it orders the business of the Oireachtas. That is the Government's job, not the Ceann Comhairle's. The Ceann Comhairle's job is to ensure that the place is run properly according to the rules. Will the Taoiseach withdraw the motion, re-order it or do whatever he needs to do to ensure that we have a debate on this very important issue?
The letter to the Minister for Justice and Equality is a letter from the Ceann Comhairle to the Minister for Justice and Equality. It obviously was not a letter that was circulated to everybody. The Minister got the letter yesterday.
The position is that the Ceann Comhairle interprets the Standing Orders of the Dáil. The Ceann Comhairle is utterly independent in that position. The Government, following the Guerin report, decided and made a decision to set up a commission of investigation. The Government took legal advice on that and the Government made a decision to set up that investigation. The Ceann Comhairle, in interpreting the Standing Orders as I said to the Dáil here without reading the letter formally, made his ruling under Standing Order 57(3). He uses his authority, in that, under the Standing Order, he has the power either to allow or disallow debate on a matter that he considers to be sub judice. He refers specifically to Standing Order 57(3) for the purpose of his interpretation. So the Ceann Comhairle has ruled on this. To withdraw the motion is of no assistance to anybody because his ruling has already been made clear.
-----and the decision of the Government following that. The Ceann Comhairle has ruled under Standing Order 57(3) that he will not allow a debate on the terms of reference. It is important that the Guerin report be followed through with the setting up of the commission of investigation. That is the purpose of placing this on the Order Paper. It was never listed for yesterday. If it was referred to yesterday, it would have to be listed for today, Wednesday, for consideration. That is the position, Deputies. The Ceann Comhairle is completely and utterly independent and I am not questioning his authority to make such a ruling in any way. He has interpreted Standing Order 57(3) on the basis that there can be no debate on the terms of reference. The Government is anxious to move through this so that the commission of investigation can be set up and get on with its work-----
If I were to accede to Deputy Martin's request, first of all it would not change the situation or that the Ceann Comhairle has ruled. I do not intend to go against his ruling in his independence.
We have just learned in the last minute that a Member of this House, a former Minister, initiated all of this by writing to the Ceann Comhairle, as per the Taoiseach if I heard him correctly-----
-----and also by writing to the Taoiseach's office. Things were going on behind the scenes for quite some time since November, but we are only learning about them right now as a motion is being tabled without debate.
I will not make any pejorative remark. One could accuse Deputy Shatter of, as Minister, having tried to silence whistleblowers for long enough, but it is not acceptable that a Member of the House should try to muzzle the House itself-----
It is unacceptable. I will put my request to the Taoiseach to the Leas-Cheann Comhairle as well, as he is now in the position of the Ceann Comhairle, who unfortunately cannot be with us today. It is a reasonable request to put to the Chair and on which to get the agreement of the Taoiseach, who has the obligation to lay motions before the House, namely, to withdraw the motion so that we can have, at the very minimum, full transparency regarding this entire episode.
For example, making available to Members of the House all of the correspondence to the Ceann Comhairle and the Taoiseach from Deputy Shatter's solicitors and legal firm as well as the Ceann Comhairle's letter-----
-----to the Minister outlining his interpretation of Standing Order 57(3) would be a minimal and reasonable request. With due respect for what Opposition Deputies are saying, I ask the Leas-Cheann Comhairle not to proceed with this matter today pending my request and a reconsideration by the Ceann Comhairle. The Taoiseach's withdrawal of the motion would in no shape or form be him going against the Ceann Comhairle's ruling. This was on yesterday's Order Paper and was pulled. There is no reason not to remove it from today's Order Paper and to move it to next week. In the interim, we could have full transparency and engagement on the issue of why the Dáil was about to establish an inquiry when not a single Deputy could comment on the merits, demerits or otherwise of the establishment of that inquiry.
I asked the Taoiseach whether Deputy Shatter or anyone acting on his behalf had been in touch with the Taoiseach's Department, the Ceann Comhairle or anyone else in the Oireachtas, but he did not answer.
I had to ask the question again before he conceded and he has not told us the content of the letter. This is the stuff that the Government is not good at. This is where they make a mess of it and they have consistently made a mess of it.
It should have been a simple, straightforward matter for the Government to order business in a way which took on board the Ceann Comhairle's views, if that was in the Taoiseach's mind, but allowed Members to have our say on these matters. Instead, however, we had to drag it out of him. That has consistently been the record of this Government - not coming forward and empowering people here with information on which we can make sound judgments.
I also asked if the Taoiseach had consulted or sought an opinion from the Attorney General. Do we have the legal advice that the Ceann Comhairle was given? I am appealing for it again. The Taoiseach can go ahead with this vote, lining up all the backbenchers to fill the lobbies and it will go through without a doubt, but he should not do that. He should reorder it for tomorrow or next week, as opposed to doing what he has been doing since he came into office.
On a point of order, I asked a question yesterday on whether the Taoiseach had a letter from the former Minister, Deputy Shatter. Both the Taoiseach and the Minister for Justice and Equality shook their heads. They did not say anything, they just shook their heads.
There is a court case listed on this matter now. The letter was sent to the Ceann Comhairle on 25 November 2014 by Deputy Shatter in respect of the Guerin report and the proposed terms of reference for a commission of investigation. That was written to the Ceann Comhairle on 25 November. My private secretary received a letter on 8 December 2014 enclosing a copy of that letter. That was a covering letter from the legal firm of solicitors.
Deputy Shatter wrote to the Ceann Comhairle on 25 November. My office received a copy of that letter on 8 December with a covering letter from the legal firm of solicitors, Gallagher Shatter. In that letter they requested that the reference in the terms of reference to the Minister for Justice and Equality would be withdrawn. The private secretary had previously written to the firm of solicitors indicating that when the terms of reference would be approved by the Government, the legal firm would be notified. He indicated that at its meeting on 19 November the Government proceeded to approve a draft order to establish a commission of investigation under the Commissions of Investigation Act 2004. That was the correspondence that came through there.
On a point of order, subsequent to that the Government, on the last day before Christmas when this House had finished, decided to publish the terms of reference of the commission and ignored a request of Deputy Shatter's solicitors, so why would it be an issue now?
At its meeting of 19 November the Government approved the terms of reference. The letter that came to me was not about this debate, it was about a request to remove the reference to the Minister for Justice and Equality from the terms of reference.
Obviously, the terms of reference speak for themselves where that reference is still included. The Ceann Comhairle has ruled on that basis, under section 57(3), that a debate cannot be held on the terms of reference. The Government is very clear on the terms of reference and the Ceann Comhairle has so ruled.
This is very important, a Leas-Cheann Comhairle. Let me give some sense of how serious this is. It goes to the heart of what this Dáil is about. We do not want to participate in a sham.
At the very least the Dáil should adjourn or we should wait until the Ceann Comhairle comes back to give a proper, rational explanation as to what is going on here. We should have full transparency in terms of the interaction between Deputy Shatter, or his legal representatives, and the Ceann Comhairle's office. We were not told about any of this until this very minute - the last moment, the eleventh hour. I have never before witnessed an inquiry being established thus. Will the inquiry itself encroach upon the courts, as per the Ceann Comhairle's ruling? There is no rational logic to this, so I ask that the Dáil be adjourned. The Taoiseach is refusing to withdraw the motion but I think he should do so. Pending that, the Dáil should be adjourned. I want some substantive answer from the Ceann Comhairle's office as to what is going on here and why this has happened. The Leas-Cheann Comhairle can make a ruling to adjourn on this specific issue. What is going on is unacceptable.
Yesterday, the Government Chief Whip informed the other parties' Whips of the Ceann Comhairle's decision and they were quite free at that stage to take the matter up with the Ceann Comhairle's office.
Will the Taoiseach explain how a decision of the House now not to proceed with this matter and deferring it for a number of days would in any way be in conflict with the Ceann Comhairle's view? It would not be but it would certainly allow for an opportunity for proper engagement, proper explanation and then with the full information we could re-examine the matter. To proceed now would be absolutely outrageous. I appeal to the Taoiseach not to set the addressing of these matters off on this poor beginning. That would be a sham. We need to have full clarity but that is not available to us.
On a point of order, we have been asking for copies of the correspondence and any legal advice or the whole narrative in relation to the lead-up to this, yet the Taoiseach has not answered. Will the correspondence that the Taoiseach and the Ceann Comhairle have be released to Members? While we are waiting for that to happen, is it not fair to ask that this matter would not be dealt with by this House? If necessary, the House should be adjourned. Members on this side might wish to seek legal advice.
The Cabinet made a clear decision to set up a commission of investigation. It did so in the context of the advice of the Attorney General who does not advise the Ceann Comhairle. The Attorney General advises the Government. The Government made its decision and the terms of reference are there dealing with the outcome of the investigation into certain matters in the Cavan-Monaghan area, arising from the Guerin report. The notification was sent yesterday by e-mail from the Whip's Office to all of the other Whips and they chose not to follow that through.
The Minister for Justice and Equality received her letter this morning. The Whip followed through with the Committee on Procedure and Privileges, but the ruling of a Ceann Comhairle is not reversible. The Ceann Comhairle has made his ruling.
He has found that under section 57(3) a debate is not allowable on the terms of reference of this commission of investigation in the manner in which he has interpreted those rulings.
The Government set out to have the commission of investigation established and its terms of reference debated. The Ceann Comhairle, in his utter independence, has made his ruling-----
As I already indicated to Deputy Adams, the correspondence I received last year was from the legal firm and it included a copy of the letter to the Ceann Comhairle requesting that the reference to the Minister for Justice and Equality would not be part of the terms of reference.
As those who called the division have not nominated tellers, I am required, in accordance with Standing Order 70, to declare the termination of the vote in favour of the other side. The question is, therefore, carried and the proposal is agreed.