Clare Daly (Dublin Fingal, Independent)
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I listened to the Tánaiste during Leaders' Questions with a mixture of disbelief and awe. Does she really believe that the questions about the conduct of the Garda Commissioner are going to go away? Does she really believe that, by saying that the Commissioner made it clear that she supported Maurice McCabe, it is the end of the matter? What the Commissioner's statement actually said was that she had never regarded Maurice McCabe as malicious. Fair play to her, that is very nice, but it is not the issue at hand. The issue in front of the public is that the Garda Commissioner's legal team, allegedly on her instruction, attempted to mislead the commission deliberately by entering false information in order to challenge the motivation and credibility of Maurice McCabe. The fact that legal counsel has stated that the attempt to challenge his integrity was its idea and not the Commissioner's does not make any difference. It is reminiscent of the former Minister, Alan Shatter, throwing Oliver Connolly under the bus.

The commission was told that two senior gardaí would give direct evidence to the effect that Maurice McCabe was present at a meeting and stated that he operated under malice. It was only when irrefutable evidence was presented showing it to be false that the allegation was withdrawn. If the Tánaiste does not have a problem with this, we are in even bigger trouble than I believed. There is an immediate crisis of trust and confidence in the Commissioner. Public statements uttered by her in support of whistleblowers have been contradicted by her actions behind the scenes. The Tánaiste should not be surprised about that because we are not. Eighteen times since the Tánaiste became Minister, Deputy Wallace and I have tabled the issue of Commissioner O'Sullivan's treatment of the whistleblowers Mr. Keith Harrison and Mr. Nick Kehoe. The Tánaiste has done nothing. Will she launch a full investigation into the Commissioner's actions in accordance with the Garda Síochána (Policing Authority and Miscellaneous Provisions) Act, under which she can investigate and remove the Commissioner for actions that discredit her office? Will she commission the Garda Síochána Ombudsman Office, GSOC, to launch an investigation? If not, why not?

I am reminded of a memorable contribution by Deputy Wallace in the Dáil when he told the former Minister that it was time for the latter to go and to take the then Commissioner with him. It is obvious that it is time for the current Commissioner to go. Unless the Tánaiste acts, the Commissioner will take her with her.

Mick Wallace (Wexford, Independent)
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If Maurice McCabe had not made a recording, the judge would have been compelled to believe the two officers and Maurice McCabe would have been destroyed. This development was not even mentioned in the O'Higgins report. Surely, that undermines the report's integrity.

We still do not know whether Ms Nóirín O'Sullivan's legal team, under her direction, handed documents to the commission that contained a false statement. That is supposedly a criminal offence. This is a serious matter. I find it difficult to believe that, when there is so much discussion about doing things differently in all aspects of politics, Fianna Fáil does not want to know about this situation. It just wants the issue to go away as well. This is shocking.

What the Commissioner says in public is different to what is happening on the ground. Mr. Keith Harrison and Mr. Nick Kehoe have been treated abysmally for two years. Both are out sick now. One gets less than €300 per week and the other gets nothing. Every effort has been made to hound them out of their jobs. It is two years since Mr. Harrison tried to get a proper hearing and he has only had one proper meeting with GSOC. GSOC requested Mr. Kehoe's file after a poor internal Garda investigation. The Garda was given 30 days to deliver it but still has not done so.

Ms Nóirín O'Sullivan asserts that dissent is not disloyalty, but that is not true. Now it is being claimed that the question of integrity was not raised and the senior counsel is being thrown under the bus or is taking one for the team. The Commissioner is not even rowing back on how she questioned Maurice McCabe's motivation. She has not rowed back on the fact that she was questioning his character. Who in God's name would be a whistleblower? She is not fit to be the Commissioner. Nothing has changed. It is as it was. We will not improve or change how we do policing in Ireland until we change the hierarchy and start from scratch.

Frances Fitzgerald (Dublin Mid West, Fine Gael)
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As the Deputies are aware, I published the report of the O'Higgins commission of investigation into certain matters relevant to the Cavan-Monaghan division of the Garda Síochána on 11 May. The report deserves the most careful consideration so that we can do everything possible to avoid a repeat of the issues that gave rise to the commission in the first place. The Government accepts its findings fully.

Our focus now should be on ensuring that victims of crime receive the level of service from An Garda Síochána that they deserve. However, given the comments made by the Deputies, I want to deal with the matter of the alleged stance of the Garda Commissioner's legal team at the commission. I must preface my remarks by making it clear that there are severe constraints on what I can say in this regard. To do so, I must refer the House to section 11 of the Commissions of Investigation Act 2004. The Act contains a prohibition, with limited exceptions, to the disclosure of any evidence given, or the contents of any document produced, by a witness while giving evidence in private at such a commission. As the Deputies are aware from the earlier discussion, evidence was given in private to the commission by 97 witnesses over 34 days. Mr. Justice O'Higgins in his report referred to the confidentiality of its proceedings saying that, in accordance with the provisions of the Act, the commission took all necessary steps to ensure the confidentiality of its proceedings. All of the proceedings into the evidence were in private and there was no request from anyone to have them in public.

I will make the general point that partial disclosures of what happens in private at commissions of investigation are inherently unfair to those who participate in such commissions and properly feel bound by the laws that apply to them. All 97 witnesses before the commission have rights with regard to the confidentiality of the commission's proceedings and I have a duty to respect those rights. I suggest that all Deputies have those rights. Above all, I have a duty to respect the law. That duty is not diminished by the fact that some media reports purport to set out a small part of what may have happened at the commission's private proceedings, notwithstanding any legal prohibitions in that regard.

I am aware of suggestions that it would not be unlawful for the Commissioner to disclose the instructions that she gave to counsel, as this would not involve discussing evidence given at the commission.

Leaving aside the legal position set out in the 2004 Act, it seems it would be a significant change to the generally accepted position that communications between a lawyer and a client should not have to be put in the public domain. To put it mildly, it would be very unusual to ask any party to a legal proceeding to disclose unilaterally its dealings with its legal representatives. In any event, this would actually involve a partial disclosure of what happened at the commission and could serve to undermine its work. It is hardly a demand that the Deputies would make of any other party to the commission.

For the reasons I have explained, I do not believe it is appropriate for me to comment on the specific reports that have appeared in the media, and further reports this evening on the 6 o’clock news, about what happened at the commission. I welcome the Garda Commissioner’s clarification, which was issued last night. She repeated that she accepts fully the commission’s findings. Of course, that includes accepting fully what the commission had to say about Sergeant Maurice McCabe.

There is no obligation on anyone to accept the findings of Mr. Justice O’Higgins. I said on the publication of the report that I hoped everyone affected would accept that Mr. Justice O’Higgins had fairly tried to do justice to the position of all. I believe that to be the case. However, it would be very unwise and unfair to attempt to rerun the commission’s proceedings on the basis of allegations about what may or may not have happened at a part of the commission’s proceedings. Suggestions that there should be some form of investigation, as we have heard tonight, into what happened during the proceedings of the commission of investigation seems to me to fundamentally misunderstand the nature and purpose of commissions of investigation. As I indicated when publishing the O’Higgins report, we should not lose sight of the central fact that at the heart of this report are victims who were let down. Our focus should now be on taking all the steps necessary to ensure that does not happen again and that we have a policing service that serves all the citizens of this country to the highest standard. I have had preliminary discussions with the Garda Commissioner about taking forward the recommendations about policing contained in the report, and I have every confidence in her commitment to take these forward.