Dáil debates

Wednesday, 22 June 2016

Priority Questions

Commissions of Investigation

2:15 pm

Photo of Clare DalyClare Daly (Dublin Fingal, Independent)
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14. To ask the Tánaiste and Minister for Justice and Equality if she has examined the transcripts and documents submitted to the O'Higgins commission, which are held by her Department, in order to establish the facts around the evidence given, to impugn the motivation of a person (details supplied) which is a pressing issue of public concern; if not, why; and if she will make a statement on the matter. [17507/16]

Photo of Clare DalyClare Daly (Dublin Fingal, Independent)
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The Tánaiste will agree that confidence in the Garda Commissioner is a critical matter and it lies at the heart of the controversy around the transcripts in the O'Higgins commission because it leads the public to believe that what the Commissioner states in public and what she does in private are two entirely different matters. Leaving this matter open or sending it to Garda Síochána Ombudsman Commission, GSOC, will not resolve the issues. The Tánaiste has the transcripts and the documentation in her possession. I want to know if the Tánaiste has read them. If not, why has she not read them, given their importance? Does the Tánaiste plan to do so? Can we end this matter and give confidence to members of the service and, indeed, the public at large?

Photo of Frances FitzgeraldFrances Fitzgerald (Dublin Mid West, Fine Gael)
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Before its dissolution and, in accordance with section 43(2) of the Commission of Investigation Act 2004, the O'Higgins commission of investigation deposited its files with my Department.

The provision in question allows for the depositing of papers in circumstances where a commission is no longer in existence as papers belonging to a commission must be held somewhere. What is at issue here is the safe keeping of the files in terms of their ultimate depositing in the National Archives, their production before a tribunal if that becomes relevant or, similarly, on foot of a court order if one were made in the course of judicial proceedings.

I do not believe it was ever envisaged that the act of depositing files with the sponsoring Minister was intended to allow that Minister access to the private proceedings of a commission of investigation. That would mean that after any commission of investigation had concluded its work in any area, despite the fact that evidence was given in private, the veil of confidentiality surrounding its proceedings could be lifted by any Minister who could then go through the evidence given in private by any party to the commission proceedings. That would be wholly inappropriate and, in any case, section 11(3) of the Commission of Investigation Act 2004 specifically provides, inter alia, that a person, including a member of the commission, shall not disclose or publish any evidence given in private except in certain restricted circumstances. The act of depositing those documents in my Department has to be seen as consistent with that obligation and, accordingly, it would not be proper for me, as Minister, to access commission papers except in accordance with the very specific exceptions set out in the Act. It is clear too from section 11 that it would be an offence for a Minister to disclose material covered by that section except in the limited circumstances set out in that section.

Photo of Clare DalyClare Daly (Dublin Fingal, Independent)
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I am astounded by the Tánaiste's answer. It does not hold sway. The Tánaiste is the person to whom the Garda Commissioner is answerable. I did not ask the Tánaiste to publish or disclose the information that is in her possession and charge. I asked the Tánaiste if she had read it.

The Tánaiste seems to think it is sufficiently important to commission a section 102 investigation with GSOC into these matters which, the Tánaiste told us earlier, was critically important. What will GSOC find out or what will it look for? Was evidence given to the commission from two officers saying that at a meeting in Mullingar Sergeant Maurice McCabe gave evidence to indicate that his motivation was malicious? If they did say this, why was that not acted upon?

How will GSOC get access to that information if the Minister, as the person to whom the documentation is lawfully lodged, cannot get access to it? It is not really a major investigation and either they did or they did not. The Minister is on record as saying we cannot pass comment because we have only seen part of the story. There is an onus on the Minister, as the person responsible for the Garda Commissioner, to see the full story. She does not have to make it public. If she cannot see that, to be honest we have a much bigger problem with the justice portfolio than I thought.

2:25 pm

Photo of Frances FitzgeraldFrances Fitzgerald (Dublin Mid West, Fine Gael)
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I am equally astounded that the Deputy believes I should access papers belonging to a commission of investigation held in private, with people afforded confidentiality with respect to evidence. I am equally astounded the Deputy believes that should be done despite legislation and the detail of it. Mr. Justice O'Higgins was in a position to hear all the evidence presented to the commission and it was entirely a matter for the commission, having heard all the evidence, to reach its conclusions and deal with whatever matters it considered appropriate in its report.

With regard to how whistleblowing is dealt with inside An Garda Síochána, the Garda Commissioner has made absolutely clear her policy position on the support that the Garda should and is giving to whistleblowers. There is no question of my examining the papers given to me from the commission. As a result of the serious issues that arose and to avoid any lack of confidence or clarity with the issues identified by the O'Higgins commission, I have referred the matter to GSOC. The Deputy knows GSOC is an independent body and it will carry out an independent investigation, deciding on its methodology and how to approach the investigation. I certainly will not assume anything about the rights or wrongs of what happened because I do not have the facts. The O'Higgins commission had the facts and published its report. I have now referred the particular issue relating to Mullingar for independent investigation, which is important.

Photo of Clare DalyClare Daly (Dublin Fingal, Independent)
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Let us be very clear. The Minister has the facts but she has stated that she has chosen not to look at them. That is a very serious issue as there is nothing in legislation preventing the Minister from doing that. She has told the House that testimony of which the dogs on the street have seen part is okay but the Minister, who is responsible for the Garda Commissioner, cannot gain access to it. Not only that but she told us she has referred the matter to GSOC. I presume the Minister believes GSOC will be able to examine material that she cannot examine; otherwise how could we get to the truth of the matter? It is not an insignificant matter.

The Minister has just indicated that the Garda Commissioner has made absolutely clear her commitment to whistleblowers but I dispute that commitment. I know what the Commissioner has said in public and what she does behind closed doors are different. That is what the evidence in the public domain is telling us with regard to Maurice McCabe. I know that to be the case with current whistleblowers. Unless this is answered, there will be a critical crisis of confidence in the service. The Minister cannot hide behind legislation and legal opinion that she has not sought on the matter.

Photo of Frances FitzgeraldFrances Fitzgerald (Dublin Mid West, Fine Gael)
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It is not a question of hiding behind legislation but rather of following the law. It is absolutely clear. The fact that files are being deposited for safe-keeping certainly does not envisage anybody reading them outside of their disposal to the National Archives.

Photo of Clare DalyClare Daly (Dublin Fingal, Independent)
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There is nothing preventing the reading of them.

Photo of Frances FitzgeraldFrances Fitzgerald (Dublin Mid West, Fine Gael)
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That is the reality. The Deputy is assuming the outcome of an investigation and I will certainly not do that. I will await the outcome of the GSOC investigation. We have heard partial evidence and all the evidence has not been in the public arena. I asked GSOC to investigate the issue and I await the outcome of that investigation.