Micheál Martin (Cork South Central, Fianna Fail)
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3. To ask the Taoiseach the position regarding the letter he mentioned during the Order of Business on 28 January 2015 that he received from a legal firm in respect of the terms of reference on the commission of inquiry to be established following the Guerin report; and if he will make a statement on the matter. [5475/15]

Gerry Adams (Louth, Sinn Fein)
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4. To ask the Taoiseach if he will report on the correspondence he received on 8 December 2014, referred to during the Order of Business on 28 January 2015, from a legal firm (details supplied); and if he will make a statement on the matter. [15224/15]

Enda Kenny (Mayo, Fine Gael)
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I propose to answer Questions Nos. 3 and 4 together. The Government had scheduled a two hour Dáil debate for 28 January this year on the draft order to establish the commission of investigation in respect of the Cavan-Monaghan Garda division. The debate was to be taken by the Minister for Justice and Equality. However, in a letter of 27 January 2015, the day before the proposed debate, the Ceann Comhairle informed the Minister for Justice and Equality of his ruling not to allow a debate on the draft order. He was perfectly entitled to make his ruling. The important point is that the Government had already decided there should be a commission of investigation. Given the Ceann Comhairle's ruling, the Government order, which included the terms of reference, was adopted by the Dáil without debate. The commission of investigation was subsequently established by the Government on 3 February 2015 with Mr. Justice O'Higgins as its sole member.

On 3 February 2015, I instructed my officials to publish on www.merrionstreet.ie all of the correspondence received from Gallagher Shatter Solicitors, including the letter dated 8 December 2014 to which the Deputies refer, and the replies to that correspondence. It is clear from the correspondence published that the replies from my Department were at all times clear and consistent. The observations by the legal firm on the terms of reference for the investigation were not taken into account and the terms of reference accurately reflect those suggested by Mr. Guerin.

Any questions in relation to the O'Higgins commission of investigation should be put down to the Minister for Justice and Equality who is the specified Minister under the Commissions of Investigation Act.

Micheál Martin (Cork South Central, Fianna Fail)
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I wanted to raise this issue some months ago but with the passage of time our getting to deal with it has been somewhat delayed, but I thank the Taoiseach for his reply. I put it to the Taoiseach that Deputy Alan Shatter and his legal firm wrote to the Taoiseach and, I think, the Ceann Comhairle and essentially wanted to delay the terms of reference-----

Seán Barrett (Dún Laoghaire, Ceann Comhairle)
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He did not write to me.

Micheál Martin (Cork South Central, Fianna Fail)
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At all.

Seán Barrett (Dún Laoghaire, Ceann Comhairle)
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No, not on this issue.

Micheál Martin (Cork South Central, Fianna Fail)
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Not on this particular one.

Seán Barrett (Dún Laoghaire, Ceann Comhairle)
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This decision was taken solely by me in the interests of what I saw as the speedy work to be carried out-----

Micheál Martin (Cork South Central, Fianna Fail)
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Deputy Shatter had written to the Ceann Comhairle before.

Seán Barrett (Dún Laoghaire, Ceann Comhairle)
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Not on anything to do with the Guerin report.

Micheál Martin (Cork South Central, Fianna Fail)
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Okay.

Seán Barrett (Dún Laoghaire, Ceann Comhairle)
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I do not want anyone to be under any impression that I came under any pressure from anyone.

Micheál Martin (Cork South Central, Fianna Fail)
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The Taoiseach said in his reply that the Government had intended to have a two hour debate on the commission of inquiry. That debate was stopped. The Ceann Comhairle made a ruling that there would be no debate. I find it extraordinary that a Member of the House would seek to suppress a debate on the establishment of an inquiry because of his particular perspective on that inquiry and its terms of reference, particularly given the said Deputy was a member of the Government which set up the Guerin review in the first instance and which subsequently led to the establishment of the commission of inquiry. Does the Taoiseach believe it was correct of Deputy Shatter, given his role as a Member of the House, to attempt to muzzle the House and to ask for the debate to be stopped and blocked?

I believe there is an obligation on every Member first and foremost to establish the rights of Deputies to speak on fundamental issues that pertain to the House, in other words, to speak on whether we should set up an inquiry, what the inquiry should consist of, what the terms of reference should include and what they should exclude. I have never before come across a situation where a commission of inquiry was established without a debate. The Members who are being asked to have an input should be asked to have an input. I realise that under the Commissions of Investigation Act 2004, the Government takes the initiation role in terms of establishing the inquiry and so on. However, it was never envisaged that there would be no debate in the House on the terms of reference, good, bad or indifferent, of a particular inquiry.

We saw again recently attempts being made outside the House to suppress debate in the House in respect of Deputy Catherine Murphy's contributions on another issue and the reporting of those. As a Parliament we should be clear in upholding the absolute principle whereby Deputies have the right to have a voice on issues they are asked to decide upon. If a Deputy is asked to vote on something he should have an opportunity to speak on that or have an opinion on it, particularly on a matter that has already exercised the House for a considerable time previously, for example, all the issues relating to the establishment of the commission of inquiry and the Guerin report. Many Members had made contributions on all the issues to do with the Department of Justice and Equality, the then Minister for Justice and Equality and so on. It was absurd that Deputy Shatter would seek not to facilitate a wide-ranging and open debate by all Members on the establishment of the commission. Does the Taoiseach believe he was right to so do?

Seán Barrett (Dún Laoghaire, Ceann Comhairle)
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I think it is necessary for me to put on the record that I was not influenced by anyone in respect of this matter. The only concern I had was that the debate would be on the terms of reference only and not on the subject matter. The terms of reference were the subject of a debate that could be allowed. Apparently, the terms of reference had been accepted by all parties and, therefore, I, in my wisdom or otherwise, decided on this stipulation rather than having the possibility of a challenge being made if we strayed outside that debate which could result in the setting up of the commission being delayed. That was my only concern. It was not as a result of any representation or pressure from anyone, either from the Government, the Deputy or anyone else. I want to put that on the record.

Enda Kenny (Mayo, Fine Gael)
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I accept exactly which you say, a Cheann Comhairle. The Government had decided on 28 January of this year that there should be a commission of investigation into the matter of the Cavan Monaghan Garda division and the debate was to be taken by the Minister for Justice and Equality. You, as Ceann Comhairle, made your ruling and you were perfectly entitled to do that.

I published all of the correspondence from Gallagher Shatter Solicitors through 9 September to 17 December. All of it was published for public availability. The Government's decision to approve the draft order with the terms of reference was also published. The Government had a clear view about this and it was happy to make its decision with that clarity. Despite any correspondence received, the Government had a clear focus on what it wanted to do and on making the decision in that way.

Gerry Adams (Louth, Sinn Fein)
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It might be worthwhile to try to contextualise this a little. The former Minister for Justice and Equality, Deputy Alan Shatter, was embroiled in a series of controversies brought to the attention of the Taoiseach and others by Garda whistleblowers John Wilson and Maurice McCabe. Many of the claims made by these two courageous public servants have since been vindicated. The response of the Government and the Garda Commissioner was to prevaricate. Then, the Garda confidential recipient resigned. That resignation was followed by that of the Garda Commissioner and then the Minister for Justice and Equality, an Teachta Dála Alan Shatter.

The Guerin report recommended that the Government establish a wide-ranging commission of investigation into allegations of misconduct in the Cavan-Monaghan Garda division, including allegations of malpractice and corruption made by sergeant Maurice McCabe. The manner in which the commission was established by the Government without a full and proper debate led to a walkout by Opposition Deputies. The Ceann Comhairle took the view, as he is perfectly entitled to, that no debate which strayed outside the terms of reference was possible as it would be in conflict with Standing Order 57. The Opposition parties took a different view.

My understanding of sub judicewas and is that it applies to cases involving juries. There was none in this case. I also understood - I said all of this at the time - that sub judicedoes not apply in cases heard before judges, especially High Court or Supreme Court judges. I accept that the Ceann Comhairle acted in keeping with his duties and without undue influence from others. However, it is also my view - I stated it then and it remains my opinion - that the sub judicerule was not being equally or appropriately applied. For example, no similar concerns were raised about sub judicewhen the Fianna Fáil leader named Padraic Wilson, a private citizen and a respondent at that time in legal proceedings. He was named in this Chamber.

This brings us to the nub of the question. On 28 January, in the midst of the row over the Ceann Comhairle's ruling to block a debate on the commission's terms of reference, the Taoiseach referenced receipt of a letter from the law firm Gallagher Shatter Solicitors, which was acting for the former Minister. In his letter, an Teachta Dála Shatter attempts to influence the terms of reference of the commission of investigation by specifically excluding his name from it. He also claimed that the tabling of the motion and the subsequent debate would encroach upon the courts. This position is at odds with his attitude in May 2014 when he resigned. At the time he wrote that it was appropriate that these matters be the subject of a statutory inquiry. He also said he was resigning because he did not want to distract from the role of the Government or create any difficulties for Fine Gael and the Labour Party.

In the course of lengthy debates in the Dáil, we eventually persuaded a reluctant Taoiseach in February to produce the details of the correspondence that surrounded this case, including the fact that an Teachta Dála Shatter had written to him as far back as last September. As a consequence, many in the Dáil, including myself, and others outside of the Dáil were left with the clear belief that the Taoiseach engaged in a series of diversions to avoid giving a full, accurate and timely account to the Dáil on ongoing and extensive correspondence between him and an Teachta Dála Shatter.

It also emerged that included in a letter to an Teachta Dála Shatter sent on behalf of the Taoiseach on 21 November was a copy of the draft order with the terms of reference for the commission of investigation. This was done a month before the draft order was presented to the Houses of the Oireachtas. Was it appropriate that a Fine Gael backbencher who played a central role in the issues under investigation should be given the draft terms of reference which, as it transpired, the Dáil was subsequently unable to debate? Another letter to Deputy Alan Shatter dated 17 December stated that Mr. Justice Kevin O'Higgins would be the sole member of the commission of investigation. Once again, this information was provided for an Teachta Dála Alan Shatter before it was presented to the Dáil or made public. Is this normal practice? Is it not evidence of the frequently-dismissive approach that the Taoiseach and the Government take to the Dáil?

Enda Kenny (Mayo, Fine Gael)
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No, I do not agree. All of the material was published from 9 September through to 17 December. That was there for everyone to examine and comment on.

Deputy Adams referred to the sending to the former Minister, Deputy Shatter, of a copy of the terms of reference.

I thought it appropriate as a matter of courtesy that he, as a former member of a Government with an interest in this, should be sent a copy of the terms of reference. The letter included the terms of reference only after they had been approved by the Government. While letters were received from the legal firm involved, they did not impact in any way upon the very clear view and decision of the Government to set up the commission of investigation with its terms of reference. After approval by the Government, out of courtesy I saw to it that the Deputy was sent a copy of the terms of reference.

Micheál Martin (Cork South Central, Fianna Fail)
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Does the Taoiseach believe his approach was the correct one?

Enda Kenny (Mayo, Fine Gael)
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I do not wish to comment on the freedom of anyone to comment or write letters. The Government had a decision made. The Ceann Comhairle made an independent, objective decision here and the Government's decision is being carried through.