Mick Wallace (Wexford, Independent)
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33. To ask the Minister for Justice and Equality if she has examined the full transcript of the workings of the O'Higgins commission in detail; if she is satisfied with the role played by the Garda Commissioner in the investigation; and if she will make a statement on the matter. [34852/16]

Mick Wallace (Wexford, Independent)
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In the O’Higgins report the Garda Commissioner, Nóirín O’Sullivan, questioned the motivation, credibility and integrity of Maurice McCabe. Has the Minister read the transcript of the O'Higgins report? How can she justify leaving the Commissioner in place given that serious questions remain unanswered?

Frances Fitzgerald (Dublin Mid West, Fine Gael)
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At the outset it is important to correct what might be a misunderstanding in the Deputy's question. In depositing the evidence and documents with the specified Minister in this case, there was no question of my having authority to access that evidence or those documents. The purpose of depositing documentation with the relevant Minister is for safeguarding it. It would be unthinkable that any Minister with whom such documentation is deposited would be free to examine details of proceedings heard in private. To do so would be to set at naught the confidentiality surrounding the commission's proceedings and would be to contravene section 11(3) of the 2004 Act which 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, including as directed by a court.

The act of depositing documents has to be seen as consistent with that obligation and therefore it would not be proper for a Minister or Department to access commission papers except in accordance with the very specific provisions 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, again, in the limited circumstances set out in that section.

Section 43 allows for the deposition of evidence and documents in circumstances where a commission is no longer in existence as obviously papers belonging to a commission must be held somewhere.

However, it is clear from the use of the word "deposit" that what is at issue here is the safekeeping of the files pending their ultimate disposal to the National Archives, if appropriate; their production before a tribunal of inquiry, if that becomes relevant; or, similarly, on foot of a court order if one were to be made in the course of judicial proceedings. For that reason I can confirm for the Deputy that I have not examined the transcripts of the O'Higgins commission.

Information not given on the floor of the House

The Deputy may also be aware that, following the referral by me to GSOC of certain allegations which arose following the publication of the O'Higgins commission report, the chairperson of GSOC wrote to me seeking access to certain records of the commission. Having received the Attorney General's advice, I informed the chairperson of GSOC of the necessity to secure a court order directing that the material be provided. While the granting of any such order is a matter for the courts, I will of course comply with any such order, if it is made.

For the reasons set out above, I can confirm for the Deputy that I have not examined the transcripts of the O'Higgins commission of investigation.

Mick Wallace (Wexford, Independent)
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It is a bit like a game. The Commissioner asked the Minister to refer the matter to GSOC. GSOC then asked the Commissioner for the transcript. The Commissioner said that under the 2004 Act she cannot give it to GSOC. GSOC then asked the Department of Justice and Equality for it. It used the same reason, namely, that under the 2004 Act and citing legal restrictions on disclosure it cannot give it to GSOC. What was the point of the Commissioner asking the Minister to ask GSOC to look into something if it could not get the transcript? There is no logic to that. Is the Minister telling me that under no circumstances could she, the Minister for Justice and Equality, who is the only person in this country who can hold the Garda Commissioner to account, possibly get the right to look at the transcript? If we want to know the truth about what happened, and we have been told by other sources what was in the transcript, surely she could get access to it if she sought the legal powers to so do.

Frances Fitzgerald (Dublin Mid West, Fine Gael)
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It is not a game. What I am doing is following proper procedures. The Deputy may be aware that following the referral by me to GSOC of certain allegations which arose following the O'Higgins commission report, the chairperson wrote to me seeking access to certain records of the commission. Having received the Attorney General's advice, I informed the chairperson of GSOC of the necessity to secure a court order, as the legislation envisages, directing that the material be provided. The granting of such an order is a matter for the courts, and I will comply with any such order if it is made. The Deputy seems to be asking me to have a commission of investigation into a commission of investigation.

Mick Wallace (Wexford, Independent)
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No. I am not.

Frances Fitzgerald (Dublin Mid West, Fine Gael)
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The reality is that due procedure is being followed. I have replied to GSOC. It will make its decision with regard to the next steps in terms of accessing the transcript but as the Deputy rightly said, I did refer some of the issues that arose following the O'Higgins commission of investigation to GSOC and I await the outcome of that, but it is not a game. It is following due procedures.

Mick Wallace (Wexford, Independent)
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The Minister says she referred it to GSOC but she will not give it the papers. The Minister knows at this stage that Commissioner O'Sullivan questioned the motivation, credibility and integrity of Maurice McCabe. Her legal team claimed that at a meeting in Mullingar with a superintendent and another garda, Maurice McCabe had behaved in such a manner. The legal team for Maurice McCabe asked the legal team for the Commissioner to go outside the room and check with the Commissioner if she wanted to stick to that story. He came back into the room and said, "Right the way through." What happened then? Maurice McCabe produced the tape and the whole thing was dropped. If the Commissioner had nothing to do with the fabrication of the contents of what was said at the Mullingar meeting, why did she not act against the two gardaí in question? The Minister might be interested to know that when the superintendent in question, Noel Cunningham, heard that the Commissioner had referred the issue to GSOC, he said, "Nóirín has thrown me under the bus." It is plain as black and white.

Frances Fitzgerald (Dublin Mid West, Fine Gael)
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Unlike the Deputy, I believe it is important that we follow the procedures outlined.

Mick Wallace (Wexford, Independent)
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The Commissioner did not.

Frances Fitzgerald (Dublin Mid West, Fine Gael)
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It is important that I follow the law and follow the procedures outlined for the investigation of such issues-----

Mick Wallace (Wexford, Independent)
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I am not asking the Minister to break the law.

Frances Fitzgerald (Dublin Mid West, Fine Gael)
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-----and that is what I have done. I am saying to the Deputy that I have referred the various issues that arose to GSOC. I have said previously that it would not be appropriate for me to comment on the purported transcripts leaked from the O'Higgins commission. For the reasons I have explained, I do not have access to the details of all that happened at the commission, and neither does the Deputy.

Mick Wallace (Wexford, Independent)
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The Minister could get them if she wanted to.

Frances Fitzgerald (Dublin Mid West, Fine Gael)
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There are procedures to be followed in regard to that, as I said to the Deputy. The person who had access to everything that happened at the commission and who heard all the evidence was Mr. Justice O'Higgins, and it was entirely a matter for him as to what he would choose to include in his report. He did not make criticisms of the kind being made by Deputy Wallace.

Mick Wallace (Wexford, Independent)
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That was not in the remit.

Frances Fitzgerald (Dublin Mid West, Fine Gael)
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The Government fully accepts the commission's findings. I do not believe that when this House establishes commissions of investigation we can adopt an à la carteapproach to their findings.

Mick Wallace (Wexford, Independent)
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The Minister is the only one who can hold the Commissioner to account and she is not doing so.