Frances Fitzgerald (Dublin Mid West, Fine Gael)
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I move:

"That Dáil Éireann:

— bearing in mind the serious public concern about allegations that senior members of An Garda Síochána sought to discredit Sergeant Maurice McCabe because of complaints he made about the performance of An Garda Síochána;

— noting the Protected Disclosure that was made by Superintendent David Taylor to the Minister for Justice and Equality on 30th September, 2016, and noting the Protected Disclosure made by Sgt Maurice McCabe on 26th September, 2016, alleging an orchestrated campaign, directed by senior officers, to discredit Sergeant Maurice McCabe by spreading rumours about his professional and personal life;

— noting the decision of the Minister for Justice and Equality on 7th October, 2016, to request a Judge to investigate whether there was an orchestrated campaign, directed by senior officers, to discredit Sergeant Maurice McCabe by spreading rumours about his professional and personal life;

— noting that, having completed his review, it is the opinion of Mr. Justice Iarfhlaith O’Neill that a Commission of Investigation should be established;

— mindful that senior members of An Garda Síochána have denied the existence of or their involvement in any orchestrated campaign to discredit Sergeant McCabe as alleged in Superintendent Taylor’s Protected Disclosure;

— bearing in mind allegations that there may have been inappropriate contacts between An Garda Síochána and TUSLA in relation to Sgt McCabe, Garda Keith Harrison and concerns that such contacts may have also taken place in relation to other members of An Garda Síochána who had made allegations of wrongdoing within An Garda Síochána;

— noting that a public inquiry is the most appropriate way to investigate these serious allegations so as to ensure public confidence in An Garda Síochána and to respond to the public disquiet caused by these allegations;

resolves that it is expedient that a tribunal be established under the Tribunals of Inquiry (Evidence) Acts 1921 to 2011, to be chaired by Mr. Justice Peter Charleton, Judge of the Supreme Court, to inquire urgently into the following definite matters of urgent public importance:

[a] To investigate the allegation made in a Protected Disclosure under the Protected Disclosures Act 2014, on the 30th of September, 2016, by Superintendent David Taylor, wherein he alleges that he was instructed or directed by former Commissioner Martin Callinan and/or Deputy Commissioner Nóirín O’Sullivan, to contact the media to brief them negatively against Sergeant Maurice McCabe and in particular to brief the media that Sergeant McCabe was motivated by malice and revenge, that he was to encourage the media to write negatively about Sergeant McCabe, to the effect that his complaints had no substance, that the Gardaí had fully investigated his complaints and found no substance to his allegations and that he was driven by agendas.

[b] To investigate the allegation of Superintendent Taylor in his Protected Disclosure, that he was directed to draw journalists’ attention to an allegation of criminal misconduct made against Sergeant McCabe and that this was the root cause of his agenda, namely revenge against the Gardaí.

[c] To investigate what knowledge former Commissioner Callinan and/or Commissioner O’Sullivan and/or other senior members of the Garda Síochána had concerning this allegation of criminal misconduct made against Sergeant McCabe and whether they acted upon same in a manner intended to discredit Sergeant McCabe.

[d] To investigate the creation, distribution and use by TUSLA of a file containing false allegations of sexual abuse against Sergeant Maurice McCabe that was allegedly sent to Gardaí in 2013, and whether these false allegations and/or the file were knowingly used by senior members of An Garda Síochána to discredit Sergeant McCabe.

[e] To investigate whether the false allegations of sexual abuse or any other unjustified grounds were inappropriately relied upon by Commissioner O’Sullivan to discredit Sergeant Maurice McCabe at the Commission of Investigation into Certain Matters in the Cavan/Monaghan district under the Chairmanship of Mr. Justice Kevin O’Higgins.

[f] To investigate whether senior members of An Garda Síochána attempted to entrap or falsely accuse Sergeant McCabe of criminal misconduct.

[g] To investigate such knowledge which former Commissioner Callinan and Commissioner O’Sullivan had concerning the matters set out in [a], [b], [c], [d], [e] and [f] above.

[h] To investigate contacts between members of An Garda Síochána and:— Media and broadcasting personnel,

— members of the Government,

— TUSLA,

— Health Service Executive,

— any other State entities,— or any relevant person as the Sole Member may deem necessary to carry out his work;

relevant to the matters set out in [a], [b], [c], [d], [e] and [f] above.

[i] To examine all records relating to the telecommunications interactions used by Superintendent Taylor, former Commissioner Callinan and Commissioner O’Sullivan, in the period from the 1st of July, 2012, to the 31st of May, 2014, to ascertain whether there are any records of text messages or other telecommunication interactions relating to the matters set out at [a], [b], [c], [d], [e] and [f] above and to examine and consider the content of any such text messages or other telecommunication interactions.

[j] To examine all electronic and paper files, relating to Sergeant Maurice McCabe held by An Garda Síochána and to consider any material therein relevant to [a], [b], [c], [d], [e] and [f] above.

[k] To investigate whether Commissioner O’Sullivan, using briefing material prepared in Garda Headquarters, influenced or attempted to influence broadcasts on RTÉ on the 9th of May, 2016, purporting to be a leaked account of the unpublished O’Higgins Commission Report, in which Sergeant McCabe was branded a liar and irresponsible.

[l] To investigate whether a meeting took place between former Commissioner Callinan and Deputy John McGuinness on the 24th of January, 2014, in the carpark of Bewley’s Hotel, Newlands Cross, Co. Dublin and to examine and consider the circumstances which led to any such meeting, the purpose of such meeting and matters discussed at such meeting.

[m] To investigate such knowledge which Commissioner O’Sullivan had of the meeting referred to in [l] above.

[n] To investigate contacts between members of An Garda Síochána and TUSLA in relation to Garda Keith Harrison.

[o] To investigate any pattern of the creation, distribution and use by TUSLA of files containing allegations of criminal misconduct against members of An Garda Síochána who had made allegations of wrongdoing within An Garda Síochána and of the use knowingly by senior members of the Garda Síochána of these files to discredit members who had made such allegations.

[p] To consider any other complaints by a member of the Garda Síochána who has made a Protected Disclosure prior to 16th February, 2017, alleging wrong-doing within the Garda Síochána where, following the making of the Protected Disclosure, the Garda making the said Protected Disclosure was targeted or discredited with the knowledge or acquiescence of senior members of the Garda Síochána.

And to adopt a modular approach to this inquiry so that the matters set out at [a] – [o] inclusive shall be inquired into in the first instance, and thereafter upon consultation with the Sole Member the Government shall, if requested by the Sole Member, take steps to appoint another Judge to continue and conclude the work of the Tribunal namely the matter at [p] above as the second module.

And to report to the Clerk of the Dáil and to make such findings and recommendations as it sees fit in relation to these matters as expeditiously as possible;

and further resolves that–

(I) the tribunal shall report to the Clerk of the Dáil on an interim basis not later than three months from the date of establishment of the tribunal and also as soon as may be after twenty days of witness testimony of the tribunal on the following matters: (a) the number of parties then represented before the tribunal,

(b) the progress which will then have been made in the hearings and work of the tribunal,

(c) the likely duration (so far that may then be capable of being estimated) of the proceedings of the tribunal, and

(d) any other matters that the tribunal considers should be drawn to the attention of the Houses of the Oireachtas at the time of the report (including any matters relating to its terms of reference),(II) the inquiry shall be completed in as economical a manner as possible and at the earliest possible date consistent with a fair examination of the matters referred to it;

(III) all costs incurred by reason of the failure of individuals to co-operate fully and expeditiously with the tribunal should, as far as it is consistent with the interests of justice, be borne by those individuals; and

(IV) the Clerk of the Dáil shall within 14 days of receipt of any report from the tribunal either apply to the High Court for directions regarding publication of the report or arrange to have it laid before both Houses of the Oireachtas."

The Government has this morning approved draft resolutions to establish a tribunal of inquiry. The resolutions, which accompany this statement, must now be approved by both Houses of the Oireachtas. The terms of reference for the tribunal of inquiry are comprehensive and clear in their focus. Mr. Justice Peter Charleton will chair the tribunal and is available to begin work this week. I thank him for taking on this role.

There has been much debate and discussion in this House about the best way to establish the truth in these matters. I thank the Members for their genuine engagement to identify the key issues that should be included. What is now proposed reflects those discussions and the information put Into the public domain last week. These terms of reference will establish a public tribunal of inquiry get to the truth. That is in the interests of whistleblowers and the interests of members of An Garda Síochána, particularly those against whom allegations have been made, and it is in the public interest. What is required is that the issue of how whistleblowers in An Garda Síochána have been treated is examined independently, fairly and publicly. For the first time, we will hear in public all sides of the story. I have said to this House previously that it would be wrong to try to remedy one injustice by creating another one. Everyone has basic human rights and it would be a cruel irony if our beliefs about the appalling treatment of some led to the ill- treatment of others. Hearing the other side is a basic requirement of fair procedure.

I will now turn to the terms of reference themselves. The tribunal will, of course, look at the matters originally recommended by Mr Justice Iarfhlaith O'Neill. I am in Mr Justice O'Neill's debt. We discussed them here in detail last Thursday. I thank him for the work he did and I thank Mr. Justice Charleton for his willingness to serve as the chairman of the tribunal. The original recommendation was for a commission of investigation. The terms of reference now contains specific references to the contacts between gardaí, Tusla, the Health Service Executive and other agencies regarding Sergeant McCabe. While allegations which were put into the public domain about Garda Keith Harrison, Tusla and Garda Harrison's general treatment were different, nevertheless, because of concerns expressed to me by quite a number of Deputies, I have included contacts between gardaí and Tusla in the first module. In the light of specific concerns which have arisen, the tribunal will look at whether there is a pattern relating to Tusla files and their use to discredit Garda whistleblowers. Many Deputies felt it was important to examine whether a pattern existed. People have said that a pattern might have existed because there are two known cases so that is part of the terms of reference.

The tribunal will now also look at certain matters relating to the O'Higgins commission. It will also took at whether senior members of An Garda Síochána attempted to entrap or falsely accuse Sergeant McCabe of criminal misconduct. There has been a lot of debate in this House and elsewhere as to whether we should look at how other gardaí who have made protected disclosures have been treated. I am providing for a new module which will allow the tribunal to look at these cases in the context of action to target or discredit Gardaí who had made protected disclosures. GSOC will continue its work regarding complaints outside of these. There is a provision that Mr. Justice Charleton may consult with me if another judge may be needed to deal with the second module. The priority will be dealing with the issues arising in the first module. We are specifically providing that the tribunal can look at contacts between members of An Garda Síochána and any other relevant person that the tribunal may deem necessary. I want to put it on the record of the House that this would include Members of the Oireachtas. Mr. Justice Charleton will decide on what is seen as relevant. Quite a number of people mentioned this as well.

I know Mr. Justice Charleton is anxious to commence his work immediately and is determined to carry it our as expeditiously as possible. Once the resolution is passed by both Houses of the Oireachtas today, I intend to make the necessary statutory instrument so his work can start immediately. That work will report to this Dáil. I look forward to the recommendations Mr. Justice Charleton will make and I look forward to the truth. We have already made extensive reforms relating to An Garda Síochána. The reality is that more cultural change is needed in An Garda Síochána because reform can never stop. We will now also have the benefit of advice from an international independent policing expert. I want to make it clear that this work will complement the work of GSOC, the Policing Authority and the Garda Inspectorate, which have all done and are doing very important jobs in this country.

I will now refer to the six questions contained in the McCabe's statement relating to An Garda Síochána to which they understandably want answers.As I have already said in the House, I want to facilitate them as much as possible but I do not want to pretend to the House that this matter is completely straightforward in circumstances where a tribunal is being established. Having consulted with the Attorney General, the Secretary General of my Department has written to the Garda Commissioner in accordance with

section 40 of the Garda Síochána Act and the power I have under that requesting the information sought in the six questions.

I expect that it will be necessary to consult further with the Attorney General once the Commissioner has replied.

Our action today will ensure that any wrongdoing around the issues we have been discussing here within An Garda Síochána will be addressed fully and fairly. I believe that is what Deputies across this House want to see. I believe the terms of reference I am putting forward today will enable the judge to do just that. As I have said before in this House, I have always been careful and scrupulous to deal with all the cases that have come to my attention. I have already put it on the record of the House that I do not have the authority to investigate protected disclosures coming from An Garda Síochána. That is the role of GSOC. I have always made the case, publicly and privately, in all of my dealings, for example, with Garda management, that whistleblowers should be protected and supported. For example, my own bona fides on this could be seen when I referred the charter for police policies on whistleblowing to the independent Policing Authority to examine it and come back to me with recommendations.

This tribunal will ensure justice for Sergeant McCabe, his family and all parties involved. That is what is important. I ask Deputies across the House for support for this motion. I believe that it is thorough in its terms of reference that I put before the House today. I have been able to include the vast majority of issues that have been brought to my attention and the key points that have been made to me by Deputies. It also includes all of the recommendations that Mr. Justice O'Neill made that we discussed here last week. I believe there is general agreement that it is important to continue to include those recommendations from the judge, which I followed in full. I have extended them to deal with the issues that I have spoken about this afternoon. I commend this motion to the House and I am sure all Members of the House will join with me in wishing Mr. Justice Charleton well in his task of great importance.

Jim O'Callaghan (Dublin Bay South, Fianna Fail)
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We will be supporting the motion. If both Houses support this resolution, this State will establish a tribunal of inquiry for the thirty-first time since the foundation of the State. Of those 31 tribunals of inquiry, it is interesting to note that six of them have been into activities of An Garda Síochána. In fairness to An Garda Síochána, seven of them have been into the activities of politicians. Therefore, gardaí do not head that league table.

Although tribunals of inquiry fulfil very important tasks, it is important to note that they do not administer justice. We need to look to see what the background was to the establishment of tribunals of inquiry. The Act was enacted in 1921 because a Member of Parliament made allegations against a Minister. He wanted them investigated. He did not want them investigated by a parliamentary committee because he wanted the witnesses to be able to take the oath. As a result, the Tribunals of Inquiry (Evidence) Act 1921 was enacted. That is the Act that forms the basis for the resolution that we are seeking to pass today. In passing, I wish to note a comment made by Deputy Pearse Doherty a number of days ago when he referred to the Tribunals of Inquiry Bill, which was instituted in 2005 and was at Report Stage in 2011. I believe it would be beneficial if we proceeded to enact it. However, it will not be possible to enact it prior to the passing of this resolution.

It is important to note that the function of a tribunal is to establish the truth. What we are doing is asking Mr. Justice Charleton to look at the facts, hear the evidence and come back with a report telling us what he views as being the truth. It is not the function of a tribunal to apportion criminal liability. If people think that there is going to be a finding of criminal wrongdoing or an imposition of a sanction against an individual as a result of the inquiry at the end of this process, that is not going to happen. It is also not the case that there are going to be any civil findings requiring an individual to pay damages to another individual. That is not the function of a tribunal. It is the function of the courts. I know that we criticise tribunals in this House are perfectly entitled to do so. However, we create them and we have a responsibility to try to ensure that they are efficient and not as costly as they have been in the past.

The most important issue when it comes to the efficiency of a tribunal of inquiry is the setting of its terms of reference. Some terms of reference in the past have been exceptionally broad and have led to those tribunals continuing for a very long period of time. I believe that the terms of reference that have been put forward by the Tánaiste with the assistance of other Members of the House are very appropriate. I believe they cover what is required. They are issues that should enable this tribunal to conclude its business in a prompt period of time.

I believe it would be helpful to quickly go through the individual terms of reference. Paragraphs [a] and [b] are paragraphs that were recommended by Mr. Justice O'Neill. Paragraph [c] is a proposed amendment that I raised in the House last Thursday and I am glad to see that the Tánaiste has accepted it. Paragraph [d] is a more specific version of paragraph [c] since it relates to the creation, distribution and use by Tusla of the file of which we became aware. Paragraph [e] asks the tribunal of inquiry to look into certain actions of the commission of investigation. It is worthwhile to note that we are asking a tribunal of inquiry to investigate some aspects of a commission of investigation. However, it is very limited to see whether or not false allegations or other unjustified grounds were knowingly used at the commission of investigation to discredit Sergeant McCabe. I believe the transcripts of the commission of investigation would be helpful to the tribunal. For the purposes of this, I assume that section 45 of the Commissions of Investigation Act 2004 will apply and that the tribunal will be able to access those transcripts.

Paragraph [f] determines whether or not there was any plan to entrap or falsely accuse Sergeant McCabe. There were some broad allegations in respect of that. Paragraph [g] was in Mr. Justice O'Neill's report, as was paragraph [h], although we have added to it "members of the Government". I note that it has also been increased to include Tusla and the HSE. Paragraphs [i] and [j] were in Mr. Justice O'Neill's initial proposed terms of reference, as was paragraph [k]. I note that the Government changed some of the wording in paragraph [k], which concerns the national broadcaster. The words "planned and orchestrated" have been replaced with the words "influenced or attempted to influence". I believe that is probably a sensible change. It broadens it out and makes it viable.

When it comes to the issue of time at this tribunal, one of the areas in which it may get into lengthy issues that could delay it concerns the area of journalistic privilege. I believe that is something to be noted. A very important factor, other than the terms of reference, concerns the cost of tribunals. We need to ensure that the State plays a role in order that the cost does not run inordinately high. We can do that by getting the State to inform parties beforehand that when they apply for representation, they must do so in the knowledge that their costs will only tax at a certain amount. If somebody is not satisfied with that, they can agree to pay their lawyers more or they can get other lawyers. It is important at the outset that the State says publicly to people seeking representation that there will only be a certain amount for representation and that the costs will be taxed at that amount.

The process of a tribunal is effective in itself. People are brought before it. We will see in public the superintendent, the sergeant, the Commissioner and the former Commissioner give evidence. Their evidence will be given in public. It will be tested. The tribunal will test it and antagonists will be able to test it. Nobody goes into a tribunal with special treatment. I would suggest that it is not going to be a very pleasant experience for anyone, but the objective of it is to procure and establish the truth. The public issues and disquiet that have been revealed require that the truth is established. I wish Mr. Justice Charleton well in that regard.

At the end of this process, all we will have is a report. In years to come, people in this House should not criticise Mr. Justice Charleton for that fact that all we got out the tribunal was a report. That is all we are asking him to do and all he can do. It is not for us to direct criminal prosecutions or civil liability cases.

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However, on the production of that report, it may be the case that other individuals such as other prosecuting authorities or investigating authorities might be able to use it as a roadmap if wrongdoing is revealed. Obviously, it can never be used as evidence.

In terms of one or two other matters, sometimes tribunals of inquiry are also played out in the media. Parties frequently like to get information out in the public domain before individuals give evidence before the tribunal. It would be preferable in this case if we allowed the tribunal hear all the evidence without any party trying to influence the outcome. Let every person go before the tribunal, give their evidence and let there be a conclusion by the judge at the end of it.

It is important to note also that sometimes tribunals can be very demanding on people who hold positions in high office. We saw that in our own party when a Taoiseach was before a tribunal of inquiry. However, the fact that one holds office does not mean that one cannot give evidence before a tribunal and continue in one's job. I refer to that because of the calls upon the Garda Commissioner. The Garda Commissioner has denied any wrongdoing. It is important that we deal with her issues promptly so that the public can see what is the situation and that a report can be produced.

I want to make another point about the politicisation of calls for a Garda Commissioner to be removed. It is part of politics in this House that people call for politicians to resign, whether they are Ministers, Ministers of State or whoever. As Members of this House we have to be careful that we do not bring into that group people on the outside who hold important jobs such as the chairman of the Revenue Commissioners, the director general of RTE or the Commissioner of An Garda Síochána. We must ensure that we do not politicise those offices by having parties in this House calling for their heads when other parties in the House are not calling for that. That will damage the institutions they serve.

It is very important that we try to re-establish public trust in An Garda Síochána. That trust exists but, unquestionably, it has been damaged by the revelations over the past while. The important function of this tribunal is to try to establish the truth. It is in the public interest for wrongdoing to be disclosed. If there is no wrongdoing it is also in the public interest for that to be disclosed as well.

I wish Mr. Justice Charlton well in the task he has to do. He should be given the opportunity to do it without background noise from politicians or from the parties affected by the tribunal. Ultimately, we will have a report, and I believe the report will be to the benefit of Irish society.

Pat Gallagher (Donegal, Fianna Fail)
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I call Deputy Jonathan O'Brien who I understand is sharing time with Deputy Peadar Tóibín.

Jonathan O'Brien (Cork North Central, Sinn Fein)
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Deputy Pearse Doherty will take one or two minutes also.

I will get directly to the point. Yesterday, we met with the Minister and brought to her seven separate proposals in terms of the changes we would like to see made. I am glad to say that six of those proposals have been taken on board in some capacity. There was an issue around the wording, and the Minister committed to do her best to try to include it.

We mentioned to the Minister yesterday the possibility of including other whistleblowers in a way that would not delay the initial focus of the inquiry, which was Maurice McCabe and now Keith Harrison. I am glad to say that paragraph [p] now allows for that to happen. The fact that we are now introducing modules will allow for the initial public inquiry into the allegations and the cases of Keith Harrison and Maurice McCabe to be dealt with. There is a timeframe on an interim report of three months, which is less than what we had suggested to the Minister. We suggested a timeframe of four months so we welcome that. If the cases of other whisleblowers need to be examined, there is scope within the terms of reference for the judge to request an additional module.

One of the other issues we asked the Minister to examine was the possibility, and we raised it last week, of including Members of the Oireachtas. I know that wording it in that way was somewhat problematic but under paragraph [h] the Minister has been able to achieve that where she states "or any relevant person as the Sole Member may deem necessary to carry out his work". I believe that covers any Member of the Oireachtas. We had also asked that Tusla and the Health Service Executive would be named in the terms of reference and we are glad to see that has been done.

The other areas we wanted included, as I am sure did other Deputies, was to determine if there was evidence to indicate a pattern in terms of the way whistleblowers were being discredited and allegations were being made about them. That is included in paragraph [o], which is to investigate any pattern of the creation and distribution of Tusla files. My only concern about that is that it is narrowed to the use of Tusla files. I would have liked it to be extended to include whether there was a pattern regarding the use of media to discredit whistleblowers but, unfortunately, we have not been able to work that into the terms. I understand the reason for that, namely, that we wanted to keep the terms of reference as narrow possible but I would have liked to determine if there was a pattern in terms of the use of the media, and not just Tusla, to discredit whistleblowers.

Only one of our proposals was not included, and we discussed this with the Minister yesterday. We had asked that the judge would be given the power to examine the protected disclosures, the way the procedures and protocols are working and whether he would recommend changes. The Minister agreed at our meeting yesterday that that is a piece of work we should probably undertake and gave a commitment that it is something we would like to undertake. It comes under the office of the Minister for Public Expenditure and Reform, Deputy Donohoe, and the Minister has given a commitment to discuss that with him. We would be eager to see that piece of work being done. I do not see any reason it cannot happen in tandem with the public inquiry. I understand the reason it is not referred to in the terms of reference but the Minister gave a commitment on it.

There is an issue around the costs. My colleague, Deputy Doherty, will speak about that but we have to recognise that when a tribunal of inquiry is set up, one of the major criticisms from the public, and even from Members of this House, is the cost of it. We believe there is a solution to that but it might mean holding back on agreeing the terms of reference until next week. I am not suggesting we should do that but it might be something the Minister would consider. We could look at bringing in emergency legislation, but I will allow Deputy Doherty to discuss that. My colleague, Deputy Tóibín, will speak also.

Overall, we are satisfied with the terms of reference. We believe they will achieve what we hope to achieve and we will support them.

Peadar Tóibín (Meath West, Sinn Fein)
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I will make a couple of points. Gene Kerrigan, in a tweet about the smearing of Maurice McCabe, stated, "Of all the files in all the world, a serious allegation accidentally falls into the file labelled Sgt McCabe". We know that the Director of Public Prosecutions decided there was insufficient evidence to proceed to a court case regarding the initial allegation made against Maurice McCabe. Dozens, if not hundreds, of allegations fail to proceed past the DPP; they are usually the end of allegations. However, that was not so in this case. We know that Paul Williams decided to focus on this particular case and wrote articles in the Irish Independentsubsequent to the decision of the DPP. Paul Williams then wrote that Deputy Micheál Martin decided to meet with the originator of the allegations and, as a result, Deputy Martin decided to send the allegations to the Taoiseach. I understand Paul Williams also wrote to the Taoiseach. The Taoiseach then decided to hold an investigation into these particular cases.

We have a case that failed to make it past the DPP, like hundreds of others, but this is different. The largest newspaper in the country takes a special interest in it, the leader of Fianna Fáil meets with the persons who made the allegations, and the Taoiseach states that he will investigate the case. What elevates this case beyond all others that failed to make it past the DPP?

Maurice McCabe is a target of the allegation within the case. Smears need vectors. Some of these vectors are people who were used and some of them are people who use others. We need to make sure these relationships are properly investigated. My major worry in this is there are journalists who feel they have valuable information to offer to the tribunal but they know if they break cover or provide the information they may never work again. The key questions for me are how we ensure these journalists feel comfortable in providing this information and how we protect them in this scenario.

Pearse Doherty (Donegal, Sinn Fein)
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I welcome the terms of reference. It is worth saying again that in the past week Maurice McCabe and Katie Hannon have done the State a great service because now we have before us far more robust terms of reference, and a tribunal of inquiry as opposed to a commission of investigation with limited terms of reference. I am very satisfied to see Keith Harrison being named in module one with regard to the connection with Tusla, and he will also be encompassed in the second module. The original claims by those whistleblowers also need to be investigated robustly.

I want to focus on what I have been doing for quite a number of years with regard to the Tribunals of Inquiry Bill 2005. It is wrong for us to proceed to establish a tribunal under the 1921 Act. We all know that legislation is flawed in the area of costs. The Law Reform Commission has produced a comprehensive report in this area. We have a Bill which deals with limiting the costs of tribunals of investigation which was approved by the Attorney General back in 2005 and which passed Second and Committee Stages. Elements of the Bill should not progress, but the core part of it on the reduction of costs of tribunals of inquiry must pass before we establish this inquiry. Do I want to stall in any way this tribunal of inquiry being established? No, I do not, but do we have an ability in this House and the Seanad to introduce that part of the 2005 Bill in the next week? Yes, we do. It would allow the sole member of the tribunal of inquiry to tell each witness the amount for which they would be covered for legal costs. No longer would we have witnesses coming in with five barristers and two junior counsels looking to recoup their costs from the State. It would be the judge who would decide what is appropriate for legal representation to be paid by the State. No longer would public relations consultants be allowed to be hired by witnesses and have their costs paid by the State. It would allow the Minister to set regulations to cap the amount paid for legal representation. We have the ability to do this. It is very simple. We have rushed through legislation in the past. The Taoiseach said to me earlier today he has requested a report on the issues I have raised. I ask the Minister, as we agree the terms of reference in the House, to consider bringing forward emergency legislation to deal with specific parts of the 2005 Bill and have them passed by the House. Sinn Féin will fully co-operate with the Minister, whether additional sittings, extra time or clearing schedules next week are necessary, to have it passed in this House and in the Seanad.

Brendan Howlin (Wexford, Labour)
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The events that have led us to this point have exposed society in a way few other issues could have done. All of this began with the relatively low-key efforts of a decent man who wanted to highlight wrongdoing in our police force. That the situation has been allowed to escalate to a point where we are once again establishing a tribunal of inquiry is astonishing. The series of events have been a squalid affair. A man and his family have been subjected to a campaign of utterly false and damaging allegations. As my colleague, Deputy Alan Kelly, and others have highlighted, it appears he is not the only one to have been subjected to such a campaign.

Public confidence in An Garda Síochána has once more been undermined. The very many honourable men and women working in An Garda Síochána to keep our society safe have had the integrity of their work undermined. A new agency created to better protect the children of Ireland from harm has had its reputation sullied. Questions once more arise as to how Ireland works to keep our children safe. These events are really damaging. They reveal dysfunction and worse that reaches across the fundamental pillars of a functioning State. Two of the most important institutions required to keep our people safe are damaged and the contagion has spread far beyond those bodies. Public administration, politics and the media have all been called into serious question.

Here we are once more creating a tribunal of inquiry. We could recite off the list of reforming legislation passed in recent years, much of it promoted by my party to restore public confidence in this country and its institutions. Those of us with long enough experience might wonder realistically what impact the legislation has made. We might wonder whether we have learned anything at all about real implementation of effective systems to ensure openness and accountability in the conduct of public life. This is Groundhog Day as much of what we have witnessed will bring us all back to other events. What is required is deep introspection from us all as to what it says about aspects of society.

I remember the Fianna Fáil and Progressive Democrats tribunals of inquiry Bill referenced by previous speakers. It was described as a consolidation and reforming measure with a view to putting in place a modern comprehensive statutory framework governing all aspects of a tribunal from the time of its establishment to the publication of the final report. What was most important was that the Bill, if passed into law, would have enabled the Government, with the approval of the Houses, to dissolve a tribunal and wind up its inquiry before it was completed. The then Minister, of course, was right to complain about spiralling costs, but the motivation at that time was to give power to the House and its majority Government to collapse inquiries. The then Minister was entitled to say that at some stage we have to ask ourselves whether it is worthwhile proceeding any further in the circumstances and that we cannot go on forever, but the upshot of it was that when the Bill collapsed we lost the opportunity to control legal costs properly and properly punish time wasting and non-co-operation by witnesses under investigation. I agree with the views of others that we need to revisit the Bill, but not the motivation, in my judgment, of the part of it that wanted to collapse inquiries midstream. Legitimate concerns have been raised about costs. Some of these have been overstated. The commission of investigation model was intended to be a cheaper option, with a greatly reduced role for legal counsel. In reality, as we saw in the O'Higgins commission, multiple teams of lawyers were often present.

I thank the Tánaiste for meeting me yesterday and for producing terms of reference which I believe encompass the issues I have raised. I wish Mr. Justice Charleton well. I hope his ambition to complete his work within the reasonable timeframe he has set out becomes a reality. The functioning of our State requires this. I expect his investigation will deliver a vindication to people whom the State has maligned. In darkness and shadows campaigns of vilification have been conducted. Perhaps the most important aspect of what we debate here today is that Mr. Justice Charleton will carry out his work in the clear light of day.

I have a question for the Tánaiste to which I hope she can respond. Will she confirm to the House that she has already issued or, if not, that she will issue later today a directive to the Garda Commissioner under section 25 of the Garda Síochána Act 2005 to secure the preservation of all Garda records and equipment that may well be relevant to the inquiry and safeguard all evidence? As we embark upon yet another inquiry into An Garda Síochána, I hope truly meaningful reforms and, what is more important, cultural change will finally begin to take root.

Alan Kelly (Tipperary, Labour)
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I also welcome the terms of reference which have been agreed and announced today. It has been a long week since my colleague, Deputy Howlin, made his statement in the Dáil. Many criticised him but that triggered the events which brought us to where we are now. My colleague acknowledged the work of everyone in the House and certain journalists but we would not be where we are today if he had not spoken.

I also welcome the considerable movement in the past couple of days and even hours. The terms of reference are divided into two segments. The first module will deal with the disclosures of Sergeant McCabe and Superintendent Taylor and, thanks to the work of a number of people, those of Garda Keith Harrison, for which I also campaigned vigorously. There are similarities between his case and the others in the form of the role of Tusla and how he, Marissa and their family were treated but it would be impossible not to deal with how he was dealt with by gardaí. I seek an assurance that all his issues will be dealt with as part of this process because it would be impossible to separate them.

The Department of Justice and Equality has now learned a unique lesson. It never wanted multiple whistleblowers' claims to be dealt with together in any inquiry or tribunal because to do so would show a pattern, a culture and similarities in the disclosures of numerous whistleblowers. It will give evidence to the people of Ireland of behaviour which is disgraceful. We also need to ensure that there is criminal sanction for wrongdoing. Today may not be the day to deal with that but we will have to come back to it.

I welcome the fact that the terms of reference cover all other whistleblowers as this is a very important facet of the inquiry, which will bring justice for the State and all the whistleblowers. While many whistleblowers will be covered by this inquiry, their daily circumstances are very different. Some are on pay; some are not. Some live on social welfare and there are many other issues. I urge the Tánaiste to look at the fact that some are being treated differently from others and that there is no consistency of treatment.

I thank those in this House who worked to ensure the terms of reference were broadened. Sergeant McCabe issued a statement a number of days ago asking whether Ministers in this or the previous Government were briefed, formally or informally, on allegations against him. As a former Minister, I was not so briefed.

Richard Boyd Barrett (Dún Laoghaire, People Before Profit Alliance)
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I move amendment No. 2:

(a) To delete, in the seventh paragraph, after the words “investigate these serious allegations so as”, the words “to ensure public confidence in An Garda Síochána and”;

(b) To insert, in the seventh paragraph, after the words “respond to the public disquiet caused by these allegations” the words “and noting the need to ensure that evidence obtained during the inquiry can be used in criminal prosecutions”;

(c) In paragraph [h] to delete the words “members of the Government” and substitute “members and former members of the Oireachtas” in their place; and

(d) To delete paragraph [p] and replace with:

“[p] To consider any other complaints by a member of the Garda Síochána who has alleged wrong-doing within the Garda Síochána where, following the making of the

allegation, the Garda making the said allegation was targeted or discredited with the knowledge or acquiescence of senior members of the Garda Síochána.”

Brendan Howlin (Wexford, Labour)
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I have not seen any amendments. May I see them?

Frances Fitzgerald (Dublin Mid West, Fine Gael)
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They have been published.

Brendan Howlin (Wexford, Labour)
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I have been in the House since the start of business today.

Richard Boyd Barrett (Dún Laoghaire, People Before Profit Alliance)
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The long and terrible struggle of Maurice McCabe and other heroic Garda whistleblowers is certainly not over but at least there is light at the end of the tunnel after the horrendous journey these whistleblowers have undertaken to expose wrongdoing, malpractice, criminal misconduct and corruption in the Garda Síochána, an institution which is supposed to uphold law and justice. After the despicable treatment, the vilification and intimidation of the orchestrated campaign against them, perhaps now they will find justice and full vindication and those responsible for the campaign against them can be brought to justice. I certainly hope so.

They have shown bravery and determination but Maurice McCabe said today that if he had to go through it all again he might not do so. That is a very chilling thing because if one of the most heroic whistleblowers says he is not sure he would do it again it is a damning indictment of the State, the political system, the police and, indeed, our legislation on protected disclosures and tribunals and the encouragement given by this House to people to blow the whistle on wrongdoing in important institutions. We have a heavy responsibility to make sure this tribunal delivers justice for the individual whistleblowers and cleans out the rotten culture that appears to exist at the highest levels of An Garda Síochána, as well as in other State and non-State bodies that may have colluded in the despicable campaign of vilification and character assassination to defend practices that breached the standards An Garda Síochána is supposed to uphold.

I reiterate the tributes to Deputies Wallace and Clare Daly, who have doggedly pursued this matter from the outset, despite attempts to impugn their characters. It seems to be a standard feature of the way the State and the system respond to political or other whistleblowers that the first line of defence is to attack the whistleblower.

Hopefully, however, we are moving beyond that.

While some journalists should be commended for the role they have played in bringing us towards the truth of these matters, particularly Michael Clifford and Katie Hannon in recent times, I would make a point about others. We have had serious allegations that members of the media may also have been involved in recycling the malicious rumours against Maurice McCabe. That is a very serious issue that has to be got to the bottom of. Over the last week or so, the tendency to try to move an issue which should have been about Maurice McCabe, the treatment of whistleblowers and the issues they were trying to uncover, as well as the need to ensure that we root out any corruption and malpractice in the Garda, too often slid into a political debate and a ding-dong between political parties. It was a debate, often encouraged by the media, about who was going to be Taoiseach, who would be in government and whether it would lead to an election. It should be about the issues, however.

I think the terms of reference are comprehensive. I hope they will get justice for the whistleblowers but let us hope that we will also learn the political lessons from the debacle that has led us to this point.

Paul Murphy (Dublin South West, Anti-Austerity Alliance)
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I welcome the fact that we are going to have a public tribunal of inquiry into this matter. Thanks for that go to Maurice McCabe and the other whistleblowers who must be commended for speaking out in the face of everything that has been thrown at them precisely for speaking out. What will be uncovered is only a glimpse of the dark underbelly of the State and how it can be used in such a way as to destroy people who pose a threat to those at the very top. It will raise the need for a much broader public inquiry involving those who are victims of injustice and looking into what has been the role of the State in our society. How have they managed to protect those at the very top and what is the relationship between them and members of the media?

The timing of this debate is somewhat unfortunate. It would have been much better, and still would be, if we could have some time over the weekend to consider this and vote on it next Tuesday, instead of doing it now. I do not understand what the rush is for in that respect.

I want to respond to a point raised by Deputy O'Callaghan that it is not appropriate for political parties, unless they all agree, to call for the Garda Commissioner to resign. I do not agree. I note that Senator Michael McDowell, a former Minister for Justice, called in the Seanad today for her to go. I just do not think it is credible that we are agreeing to set up a public inquiry into allegations that the Garda Commissioner conducted and orchestrated the blackest propaganda against members of her own police force, yet we are going to leave her in place where she could potentially play a role in obstructing the tribunal.

The existence of a tribunal cannot be used as an excuse to avoid answering Maurice McCabe's six questions now or as quickly as possible. Nor can it be used to avoid criminal prosecutions which are needed. It cannot be that in a year's time we will have another tribunal report sitting on the DPP's desk gathering dust, and no prosecutions. If what is alleged is accurate, as I believe it is, prosecutions should follow.

The costs of the tribunal have to be closely monitored, restricted and not allowed to balloon out of control so we do not have a situation of creating yet more millionaires from a tribunal. Similarly, the timing has to be watched.

We are moving three separate amendments although they are listed as one. Amendments Nos. 2(a) and (b) constitute one amendment, while amendment Nos. 2(c) and 2(d) are the second and third ones. They should be taken separately because that is how they were submitted.

We are seeking to delete the words "to ensure public confidence in An Garda Síochána" in the seventh paragraph. We do not think public confidence in the institution of An Garda Síochána is warranted. I do not think the tribunal should have a pre-ordained outcome that it will restore public confidence in An Garda Síochána. In fact, I think it is going to reduce public confidence in An Garda Síochána and will open a debate in society about what kind of police force we have and the need for a police force to be democratically accountable and controlled by the communities it is meant to serve.

Amendment No. 2(b) seeks to emphasise the point "that evidence obtained during the inquiry can be used in criminal prosecutions".

Amendment No. 2(c) seeks to broaden the current reference to "members of the Government" to read "members and former members of the Oireachtas". In that way it would include Members of the Dáil but also Members and former Members of the Seanad. That is important because in the last 48 hours we had Deputy Deasy come out, as well as the former Deputy Pat Rabbitte, and Deputy Durkan, all claiming to have heard of these allegations. Apparently, loads of the establishment party TDs were aware of these allegations but did not really do anything about them. It is not really understandable why they did not do something about it. It is, however, appropriate to broaden the reference to them. Reference has been made to a very good reason why we cannot do so. However, I do not see why it is appropriate to say "members of the Government" but not to broaden it beyond that.

Amendment No. 2(d) relates to broadening subsection [p] so that not only gardaí who have made protected disclosures before today would be covered, but also any garda who has made a complaint or allegation which could, for example, be an internal Garda complaint. If they have been subjected to these kind of smears, they should also come within this tribunal's remit.

Eugene Murphy (Roscommon-Galway, Fianna Fail)
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The next slot is for Deputy Mick Wallace and Deputy Clare Daly who are sharing time.

Clare Daly (Dublin Fingal, Independent)
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We are already on the record as saying we are concerned the issues have been a good bit rushed. We are a little bit worried about that albeit we hope our worries will not be realised. It is not the way we wanted it but we are where we are. I have heard nothing but good things about Mr. Justice Charleton and I really hope he can deliver without our worries coming to fruition. I echo the points about finances. I hope he is given the money up front to fast-track this and also that he is listened to in terms of broader recommendations he might have.

We are satisfied that the terms of reference cover the key concerns raised in the protected disclosures of Maurice McCabe and David Taylor. Those allegations are, at their heart, that there was a campaign to undermine and discredit Maurice McCabe with the direct knowledge of the current and former Commissioners. Horrible and all as that is and upsetting as this entire episode has been for so many citizens, what is most frightening is the allegation that this was done in order to detract from what he was saying. What he was saying was that we have a systemic problem in An Garda Síochána and that the blue wall of silence has only been dented, not demolished. As a result, we have a second Morris tribunal because the recommendations of the first one and the required cultural changes were not implemented. We owe it to Maurice McCabe and the other whistleblowers to ensure that the bigger picture is not lost sight of. That is why we need a radical transformation of how we do policing.

In fairness, the Minister is paying the price for not listening to us a number of years ago. While Fine Gael and the Labour Party, which was in government and stood over all of this, brought in legislation, it was not enough. The Minister has already accepted that the recommendations of the justice committee, which we released and which argued for a massive strengthening of the GSOC oversight and the role of the Policing Authority, should be looked at and addressed. We said that two years ago. If the Government had done it then, we might not be in the mess we are in now. It needs to be done now because, glaringly, the independent Policing Authority has been silent in the face of the biggest Garda crisis in our history because it has not been given a proper role of oversight or control over the Commissioner as it should have been.

While I am happy with the terms of reference and I acknowledge very much the Minister's role in extending them, we have believed all along that there were really compelling reasons the other whistleblowers should have been included. They show an unbroken thread of bullying, harassment and intimidation once they made protected disclosures. Their input is going to be vital. Up until very late last night, and I know how late the Minister was up, they were not being included with the exception of the small Tusla allegation in Keith Harrison's case. I am very glad that they are all now going to be included in the second module which I hope comes sooner rather than later.

We know tribunals cannot investigate matters which could be the subject of criminal sanction. As such, there must be a parallel criminal investigation in this regard. It is very worrying that no one is ever called to account for these matters. I bring the Minister back to what the media say this issue started with, namely the penalty points crisis. It did not really, but that was one of the things. The Minister's predecessor and herself put aside funds for GSOC to initiate a criminal or disciplinary investigation against the people responsible for that action.

Frances Fitzgerald (Dublin Mid West, Fine Gael)
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It was €1 million.

Clare Daly (Dublin Fingal, Independent)
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That was three years ago but the money has not been spent by GSOC. Nothing has been done to call those individuals to account. We need an overhaul of GSOC with more funds and fresh blood from outside with the power of the Garda to launch a criminal investigation into these matters.

My last point relates to the sitting Commissioner. It is untenable to have a Commissioner who is the subject of hugely serious allegations remaining in situ. It would not happen anywhere else. By virtue of creating a tribunal, it is in essence being said that her statements are not necessarily being believed. The idea that she would control the evidence vital for this tribunal to do its work is not acceptable not to mind the fact that no whistleblower will come forward while she remains at the helm. I am glad the terms of reference are as they are, but it is only a tiny bit of the job we have to do on this issue.

Mattie McGrath (Tipperary, Independent)
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I am delighted to get the opportunity to speak today on this important issue. I thank the Tánaiste for briefing our Rural Independent Group yesterday and I thank Deputy Harty for turning up. I am very concerned about the haste here today given the seriousness of the issue. My experience is that one makes haste slowly. We do not want to have to come back here in six months having found that issues have arisen which we did not think through. I sought to raise that this morning at the Business Committee.

Tribunals are chaired by judges and I wish this one the best of luck, but we do not have a good record with tribunals in this country. Look at the Flood tribunal and the beef tribunal under Mr. Justice Hamilton and the length of time for which they went on. Nothing came out of them except white smoke. I mean no disrespect to my learned colleague to my right, Deputy O'Callaghan, but all that came out of it was that the fat cats and lawyers got fatter and fatter.

Brendan Howlin (Wexford, Labour)
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Nothing personal.

Mattie McGrath (Tipperary, Independent)
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Deputy O'Callaghan is lean. He is not mean but lean and clean. I am sure they are rubbing their hands with glee and saying "Here we go again". They are not going to be on the dole queue for a long time but will be down in the Four Courts making hay while the sun shines. This is too serious. There are timescales in place and that is very important but we cannot get bogged down in legal argument and challenges.

There are many other whistleblowers out there who will be encouraged by this to come out. What will happen then? Where is the limit? The Minister is including the most recent one of Garda Keith Harrison but if there are others who are encouraged to come out, where are we going to go? The Minister has said we must get to the truth and that is certainly the case. She said the terms of reference will establish a public tribunal of inquiry to get to the truth. That is in the interests of whistleblowers and gardaí, in particular those against whom allegations have been made, and it is in the public interest. We all know that. The truth is vital. However, are we going to get full co-operation? I hope we are. The judge will have full powers of compellability, but if findings are made against certain people, there will be no powers of prosecution. We will see some people rubbing their hands again. Their hands will be worn with the amount of rubbing because this will be going on and on with no definite action.

What the people want and what we are entrusted to do is to root out the systemic rot in An Garda Síochána and Tusla. I have the greatest of respect for An Garda Síochána and its many good members, of all ranks, up and down the country and the work they have done and continue to do. Bad apples must be rooted out completely.

I will not refer to the Garda Commissioner Nóirín O'Sullivan remaining in place, but I was disappointed with the appointment process. We support people from abroad but appointed someone from within. We have to go outside the country. There needs to be a clean sweep and we must appoint someone who has had no involvement in Ireland if the current Commissioner is forced out of office or whenever the position becomes vacant.

A criminal prosecution should happen side-by-side with the tribunal, otherwise the tribunal will be a smokescreen. Major allegations have been made and people's lives have been destroyed. It is not acceptable.

In 2006 the Comptroller and Auditor General's report made recommendations on the costs of tribunals. It recognised that due to their investigatory nature the cost was difficult to estimate. It also stated that, nonetheless, good financial management demands that a mechanism be established to make the costs more predictable and transparent, which has not happened. The report went on to state that one possible approach would be to require the production of a formal public statement of estimated costs, a timescale and milestones at all key stages, beginning with the establishment of the tribunal. Timescales and milestones have been outlined, but there is no information on costs. The meters have already been turned on to deal with the enormous costs per hour or word. It is daft. The public does not want that. Is this what we are giving the public in the interests of getting to the truth? It will be further annoyed.

As I said, the statement could be updated to take account of significant elements or propose new lines of inquiry. How will we handle that if it arises? We must consider the costs and what could be done with the money involved. Much of the support work at tribunals is done using counsel and there appears to be scope to achieve economies by using less experienced paralegal or professional staff for research and investigation work. I am not having a dig at my learned colleague, but we have to examine that because our experience has been that costs are a runaway train. We have to be accountable. There needs to be a move away from engaging counsel for discrete modules. We need to implement a scheme of predetermined fee rates for future tribunals which takes account of the certainty of the work of tribunals in determining those rates.

I have a faith An Garda Síochána but I have no faith in Tusla. I opposed the children's rights referendum – I was the only Deputy to do so at the time. I have been vindicated because look at what we got. We rushed into different things. The Taoiseach engaged in silliness when he said he appointed the first Minister for Children and Youth Affairs. He threw the current Minister under the bus during the week, or tried to do so. The Minister was not in the Chamber yesterday for one word of the debate. She was here to vote. I wished her well and complimented her when she returned from her trip to the United States for bringing clarity to what went on and where. It was a timely reminder to the Taoiseach of where he was and was not, and who he did and did not meet. It takes two people to meet. If one has an imaginary meeting, the other person can always say it did not happen.

Superintendent Dave Taylor is a good Tipperary man and we have all met Sergeant McCabe. They know what has gone on. He has been reappointed to his position, which I welcome. We must get to the bottom of this matter.

Reference has been made to Deputy Deasy and other Deputies. I discussed a case at some length with Deputy O'Callaghan which I could bring into a tribunal.

Jim O'Callaghan (Dublin Bay South, Fianna Fail)
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I am now responsible for it.

Mattie McGrath (Tipperary, Independent)
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The Deputy is not responsible, I am not suggesting that. I mentioned what went on in Dungarvan Garda station several times regarding me and my family. It was depraved. As I said, there are many cases like that up and down the country. We are only scratching the surface. When will the culture change?

As I said, 99% of gardaí want to do a good job but they get manipulated and the wrong people are promoted. The appointments are too political. I totally agree with Deputy Wallace. GSOC and its precursor, the Garda complaints authority, were toothless when I went them with my complaint. They had no powers whatsoever. Many other people have come to me with similar stories.

I do not want to cause friction with Deputy Howlin because we had enough of that last week, but the Labour Party was in Government for the past five years. Its Deputies held very important positions and should have dealt with these issues over the past five years. Many more things should have been dealt with by previous Governments.

The issue is out there now and we have to thank a lot of people. We cannot become convulsed by this and forget about everything else. Other gardaí have different issues that have nothing to do with bullying, harassment or intimidation. They want to engage in ordinary policing. People in their homes are frightened and nervous. Not enough gardaí are in place and there have been cutbacks. We cannot waste money and forget about the public duty that gardaí have and their duty to the State to protect the people. We must support that at all times.

Róisín Shortall (Dublin North West, Social Democrats)
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I am sharing time with Deputies Eamon Ryan and Seamus Healy.

On Tuesday, I said this process cannot and must not be a ready-up between the Government and Fianna Fáil. Regrettably, that is what it has turned out to be. It is a very serious error to proceed on this basis in forcing through the terms of reference without allowing adequate time for consideration of their implications. The reason for doing this is to put the lid on this episode so that the Government, over the coming weekend, can refuse to answer questions that the public is legitimately asking and hide behind the proposed tribunal. It is unseemly for both groups to behave in this manner. It is also extremely disingenuous, given the agreement that was reached at the Business Committee on Tuesday, on foot of a proposal from Deputy Clare Daly to defer a decision on the terms of reference until next week in order to allow adequate consideration and for groups to take legal advice. This is far too serious a matter to rush it through.

It is inevitable that we will rue the day that this action has been taken in haste. If one acts in haste it is inevitable that one will repent at one's leisure. That is what is going to happen. When the Cregan inquiry was rushed through, we had to come back to grant further powers to the tribunal in order for it to carry out its work adequately. There is no reason to rush this through this week. There is no difficulty whatsoever with waiting until next week so that everybody has adequate time to consider the issues. If the Tánaiste had done that, as had been agreed by all parties, it would have allowed time for her to respond to the six questions that were raised by Sergeant McCabe. He requested an immediate response to the six questions, and his legal adviser set out the legal basis on which Ministers could respond to them. Forcing this through now provides a perfect excuse for not responding to them.

I want the Tánaiste to clarify whether she has consulted with Sergeant McCabe and his legal adviser yesterday or today.

3 o’clock

I assume that she has-----

Frances Fitzgerald (Dublin Mid West, Fine Gael)
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One cannot do that when one is setting up a tribunal. One cannot favour one party. I told the Deputy that.

Róisín Shortall (Dublin North West, Social Democrats)
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-----and that they have cleared this. Will the Tánaiste confirm whether she has actually taken the time to do that?

Frances Fitzgerald (Dublin Mid West, Fine Gael)
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One cannot do that when one is setting up a tribunal.

Róisín Shortall (Dublin North West, Social Democrats)
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It is not possible to investigate properly this whole saga while a person against whom many of the allegations have been made remains at the head of An Garda Síochána. I repeat the call for us as a Parliament to call on the Garda Commissioner to step aside without prejudice for the duration of this inquiry. It is not possible for the inquiry to be carried out adequately while she is still there and it is not possible for her to lead the Garda force. The matter of the Commissioner's interaction with and instructions to her legal team at the O'Higgins commission must be included in the terms of reference but it is omitted although it is absolutely germane to this whole saga and must be included.

Paragraph [o]-----

Eugene Murphy (Roscommon-Galway, Fianna Fail)
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I am sorry but the Deputy must conclude. I do not wish to be in any way rude to the Deputy but there was an agreed time of 80 minutes and there are two minutes left on my clock.

Róisín Shortall (Dublin North West, Social Democrats)
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Okay. My final point is that the HSE must be included.

Frances Fitzgerald (Dublin Mid West, Fine Gael)
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It is.

Eugene Murphy (Roscommon-Galway, Fianna Fail)
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One second, Minister. I will let the Deputy finish-----

Róisín Shortall (Dublin North West, Social Democrats)
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We will regret this day of forcing this through.

Frances Fitzgerald (Dublin Mid West, Fine Gael)
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It is in there.

Róisín Shortall (Dublin North West, Social Democrats)
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No, it is not.

Frances Fitzgerald (Dublin Mid West, Fine Gael)
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Yes, it is. The HSE is mentioned.

Eugene Murphy (Roscommon-Galway, Fianna Fail)
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The Tánaiste and the Deputy can take it up between them afterwards. There is just one and a half minutes left but I am prepared to give a little leeway to the two remaining speakers. I ask them to be brief, however. I call Deputy Eamon Ryan.

Eamon Ryan (Dublin Bay South, Green Party)
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I stand to agree with Deputy Shortall. I think we are rushing this and will regret it. We must be careful. The Tánaiste and I spoke yesterday and today and my proposals in terms of paragraphs (a), (b) and (d) of amendment No. 1 are not key. However, I have a serious concern about one issue. I would like a bit of time. It is sad that the Chamber is empty. We do not have a single person in the Press Gallery at the crunch moment, that is, when we are considering the real terms of reference. It was packed all week for the theatre of the political-----

Frances Fitzgerald (Dublin Mid West, Fine Gael)
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What's new?

Eamon Ryan (Dublin Bay South, Green Party)
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-----but, when it comes down to us setting up the terms of reference, I would say we are not giving it due attention. The Tánaiste has done a lot to accommodate other speakers, but I have a concern. There is a reason I included paragraph (c) in amendment No. 1-----

Eugene Murphy (Roscommon-Galway, Fianna Fail)
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Briefly, Deputy.

Eamon Ryan (Dublin Bay South, Green Party)
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-----which is to amend paragraph [i] in the Minister's terms of reference. I do not see why we are restricting the investigation of records relating to telecommunications interactions between some of the key people - Superintendent Taylor, former Commissioner Callinan and Commissioner O'Sullivan - to the period finishing on 31 May 2014. It should run through to 31 May 2016. I have a concern where we state further on that the tribunal should "examine all electronic and paper files, relating to Sergeant Maurice McCabe held by An Garda Síochána and to consider any material therein [referred to]". We are relying on the Garda file when we should be resorting to some of the telecommunications files. I could be wrong. I could be misreading it. I only got it today so I am only just working through it. However, crucially, as I read it, paragraph [k] refers to investigating whether Commissioner O'Sullivan-----

Eugene Murphy (Roscommon-Galway, Fianna Fail)
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Deputy-----

Eamon Ryan (Dublin Bay South, Green Party)
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If I could finish the point-----

Eugene Murphy (Roscommon-Galway, Fianna Fail)
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Very briefly.

Séamus Healy (Tipperary, Workers and Unemployed Action Group)
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Deputy Ryan has two minutes left.

Eamon Ryan (Dublin Bay South, Green Party)
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I have two minutes left, Chairman.

Eugene Murphy (Roscommon-Galway, Fianna Fail)
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If the Deputy could be very quick because we are overtime.

Eamon Ryan (Dublin Bay South, Green Party)
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I have genuine concerns. Paragraph [k] provides that the tribunal is "[t]o investigate whether Commissioner O'Sullivan, using briefing material prepared in Garda Headquarters, influenced or attempted to influence broadcasts on [that RTE broadcast] on the 9th of May, 2016". My concern is whether that would restrict the tribunal if there was another guard who was influencing that process. Are we narrowing the terms of reference with that language? Is there a point there or am I just misreading it? Are we over-restricting the terms of reference in those three paragraphs, that is, paragraphs [i], [j] and [k]? This is critical because I do not think the Commissioner herself would have been in touch with RTE. It may have been a senior garda. Are we restricting the ability of the tribunal to investigate other guards' telephone records in terms of contacts to RTE? The way I read it, the concern I have, which I would like to hear answered, is that, with the way we have written it, we have restricted the telecommunications records inquiry to the period before 31 May 2014. When it comes to investigating that critical programme, are we in any way restricted?

The Tánaiste is shaking her head. I would like to hear a reassurance in that regard. Why would that not be read as an instruction to the tribunal only to investigate Commissioner O'Sullivan's actions? Could legal arguments be made by other parties who would be very interested in this to say that the tribunal cannot investigate their records in regard to what happened in May 2016 because the terms of reference do not include it? I raise this issue for that one reason. I know the time has been short and that the Tánaiste has been accommodating, but I still have concerns that we are rushing this. My concern is increased because of what I have seen in previous tribunals, which I do not have time to state here.

Pat Gallagher (Donegal, Fianna Fail)
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Deputy Seamus Healy has two minutes and that concludes the matter.

Séamus Healy (Tipperary, Workers and Unemployed Action Group)
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I welcome the opportunity to speak. I also welcome the terms of reference in so far as I have had an opportunity to check them out. I believe that this is being rushed. The terms of reference were published at 12 noon today, which was approximately three hours ago. It would have been opportune to allow the Members of the House to peruse and check the terms of reference over the weekend. This could well create a situation where the terms of reference do not include everything and there may be difficulties down the road. I welcome that we are having a public inquiry. The original proposal for a private inquiry - effectively one in secret - was not acceptable or good enough and was effectively a cover-up. It suggested a cover-up.

We should have a parallel criminal investigation undertaken by an external police force identified by the Members of this House. That is the only way to deal with this astonishing and shocking situation which has had huge repercussions for individual members of An Garda Síochána and their families. It is clear that the whole situation arose from a systematic intimidation of whistleblowers by senior gardaí. In that respect, I welcome the fact that other whistleblowers are being included in the investigation.

I also believe the role of the media should be examined seriously by the judge. There is no doubt that pet criminal correspondents were used to spread false accusations against members of An Garda Síochána. The judge will need to examine that seriously and completely.

Pat Gallagher (Donegal, Fianna Fail)
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That concludes the debate on the establishment of a tribunal of inquiry. Is amendment No. 2 being pressed?

Brendan Howlin (Wexford, Labour)
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On a point of order, there are real and legitimate concerns and we need to have an answer from the Tánaiste about the points raised. For the sake of five minutes or so, I do not think we should-----

Pat Gallagher (Donegal, Fianna Fail)
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Can we just have a reply from the Tánaiste rather than a question and answer session?

Brendan Howlin (Wexford, Labour)
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Absolutely.

Pat Gallagher (Donegal, Fianna Fail)
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I will allow the Tánaiste approximately four minutes.

Frances Fitzgerald (Dublin Mid West, Fine Gael)
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I thank the Leas-Cheann Comhairle. I thank all Deputies, particularly those Deputies that are supporting the approach I have taken to the terms of reference. I have attempted to make them inclusive of the concerns people have identified to me in the various submissions I received from the various parties, Independents and other people. It was extremely helpful to have the level of detail of those who made written submissions as well. Not everyone did, but I thank those who did make them. I believe I have faithfully reflected the main concerns that have been expressed in this House on how we deal with these issues.

I am not in a position to accept any of the amendments. Primarily and briefly, I would say that the Department is covered by the term "any other State entities", Members of the Oireachtas are covered by "any [other] relevant person". That is a clear reference on my part. I can tell Deputy Eamon Ryan that the reference to May 2014 relates to the protected disclosure. Those were the relevant dates that the person in question, who was Superintendent Taylor, was the press officer. That is why those are the dates, which came from Mr. Justice O'Neill.

On the other point that Deputy Ryan made, the terms of reference relating to RTE came from Mr. Justice O'Neill, who had examined all the evidence relating to the protected disclosure. Based on his examination, he decided that was the appropriate formulation in terms of the particular issue in the protected disclosure.

The terms of reference for that matter are totally linked to the protected disclosure and Mr. Justice O'Neill's assessment of and recommendation on how they should be dealt with.

Deputy Jim O'Callaghan made a suggestion on costs, which I will follow up in so far as we can do anything. I will certainly pursue the suggestions he has made and I am sure Mr. Justice Charleton will be equally concerned to do that.

A point was made on the media. The media are included in the terms of reference and it is entirely up to the judge to decide, based on his interpretation of the evidence before him, which media outlets to approach. It will be at the discretion of the judge to decide how he will deal with many of the points raised by Deputies. The way in which tribunals of inquiry operate is that the judge decides how precisely to carry out the terms of reference. The judge will have considerable discretion in regard to bringing in relevant people, how media will be defined and so on. These decisions will be clearly based on the evidence before him.

Deputy Mick Wallace made a point on recommendations. One would expect, based on the work of the tribunal, that the judge would be in a position to make recommendations and this would include policy recommendations in respect of the subject matter of the tribunal of inquiry. I do not have to repeat what the inquiry will cover. This issue is built in to the terms of reference.

While it would be extremely difficult to do emergency legislation on changing tribunals of inquiry, I will examine whether it is feasible to do so. Perhaps I will be able to consult the judge on that matter. My advice to date, however, is that it would not be feasible to do so.

I will mention a few other points that were made. The Health Service Executive is included.

Róisín Shortall (Dublin North West, Social Democrats)
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Is that under paragraph [o]?

Frances Fitzgerald (Dublin Mid West, Fine Gael)
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Yes. I cannot check or discuss with one party that is subject to the tribunal of inquiry whether it is happy with the terms of reference or the work the Oireachtas does. This is a matter for the Oireachtas. It would be prejudicial to the work of the tribunal of inquiry if I were to check out the terms of reference to any party to it. I believe every Deputy will accept and understand that. The terms of reference are sufficiently broad to encompass the various issues that have been in the public arena.

Brendan Howlin (Wexford, Labour)
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What about a direction to preserve evidence?

Frances Fitzgerald (Dublin Mid West, Fine Gael)
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I was about to address that issue, about which Mr. Justice Charleton is well aware. Everyone who has been in contact with Mr. Justice O'Neill and every party to the tribunal has indicated he or she will co-operate fully. If anybody was to begin to disregard or try to interfere with the evidence that is needed for the tribunal of inquiry, that would be the most serious charge. The point raised by Deputy Howlin and others about preservation of evidence and so on is one of the reasons I am keen to establish the tribunal of inquiry speedily. The quicker Mr. Justice Charleton gets on with the work, the more protective it will be of the point the Deputy raised.

I can examine the issue of a section 25 direction but I believe Mr. Justice Charleton will work on that issue as soon as we establish the tribunal.

Frances Fitzgerald (Dublin Mid West, Fine Gael)
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It is a fundamental requirement that evidence given at tribunals cannot be used later as evidence in criminal proceedings.

Róisín Shortall (Dublin North West, Social Democrats)
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That is the problem.

Mattie McGrath (Tipperary, Independent)
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It is a big problem.

Pat Gallagher (Donegal, Fianna Fail)
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Please allow the Tánaiste to continue without interruption.

Frances Fitzgerald (Dublin Mid West, Fine Gael)
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This relates to people's right not to self-incriminate. It has always been the case that issues raised at a tribunal of inquiry can subsequently be subject to criminal investigation, although the evidence must be otherwise established. As I stated, we have seen previously that if there is evidence, criminal proceedings can be taken at the same time as a commission and those proceedings have precedence over the work of the commission.

Pat Gallagher (Donegal, Fianna Fail)
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Deputy Eamon Ryan may ask a short question.

Eamon Ryan (Dublin Bay South, Green Party)
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As we are under a tight schedule, I will ask a short but critical question. I deeply regret that I was not able to introduce an amendment to paragraph [k] to provide for the investigation of whether any member of the Garda Síochána influenced or attempted to influence broadcasts on RTE on 9 May 2016. I heard the Tánaiste's statement that Mr. Justice O'Neill had set the terms of reference but the position has changed since then. The Oireachtas should have the ability to make an amendment. I have a serious concern that the wording used in paragraph [k] could be used as a means of restriction. If the Tánaiste can reassure me that the terms of reference do not restrict-----

Pat Gallagher (Donegal, Fianna Fail)
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The Deputy must conclude.

Eamon Ryan (Dublin Bay South, Green Party)
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I ask the Leas-Cheann Comhairle to allow me to conclude.

Pat Gallagher (Donegal, Fianna Fail)
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There is an order of the House.

Eamon Ryan (Dublin Bay South, Green Party)
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Can the Tánaiste reassure me that the terms of reference will not prevent the tribunal of inquiry from examining contacts with RTE made by other gardaí in respect of the programme in question? I do not know if the record of the Dáil influences judges in their work but I would hate to see this matter back in the House because it transpired that the programme could not be investigated.

Róisín Shortall (Dublin North West, Social Democrats)
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Why is the Tánaiste rushing this matter? Why will she not allow Deputies sufficient time to give the terms of reference adequate consideration? all parties, apart from Fianna Fáil, have made that request.

Pat Gallagher (Donegal, Fianna Fail)
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The House has made its decision.

Mattie McGrath (Tipperary, Independent)
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We have not yet decided.

Frances Fitzgerald (Dublin Mid West, Fine Gael)
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Paragraph [h] is to investigate contacts between members of An Garda Síochána and media and broadcasting personnel. It will up to the judge to decide how broad this will be. We must leave that matter to the judge.

Eamon Ryan (Dublin Bay South, Green Party)
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The paragraph only relates to-----

Pat Gallagher (Donegal, Fianna Fail)
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Deputy Ryan, please.

Frances Fitzgerald (Dublin Mid West, Fine Gael)
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It has been accepted across the House that the terms of reference I have brought to the House are both thorough and focused and will enable the truth to be told. I would like to conclude on that point.

Pat Gallagher (Donegal, Fianna Fail)
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I remind Deputies that this matter was decided by the Business Committee.

Mattie McGrath (Tipperary, Independent)
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I am a member of the Business Committee and I raised the same question at a meeting of the committee.

Pat Gallagher (Donegal, Fianna Fail)
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The matter has been decided.

Eamon Ryan (Dublin Bay South, Green Party)
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While paragraph [h] allows the judge to examine the media, its wording refers only to paragraphs [a], [b], [c], [d], [e] and [f] and does not refer to paragraph [k].

Frances Fitzgerald (Dublin Mid West, Fine Gael)
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Paragraph [k] relates to a separate investigation. It does not limit the options.

Eamon Ryan (Dublin Bay South, Green Party)
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My concern that the tribunal of inquiry does not have the power to examine the role of the media and contacts between the Garda and media in that regard is valid.

Mattie McGrath (Tipperary, Independent)
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Deputy Eamon Ryan and I raised these issues at the Business Committee. We are genuinely concerned that we are making haste and proceeding too quickly. There may be pitfalls, which will mean the issue may come back to the House. This would place us in an embarrassing position and would mean more money for the fat cats.

Róisín Shortall (Dublin North West, Social Democrats)
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Why is the Tánaiste rushing this?

Paul Murphy (Dublin South West, Anti-Austerity Alliance)
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On a point of order, the three separate amendments we submitted are listed as one amendment, namely, amendment No. 2. The first of our amendments was to paragraphs [a] and [b], the second to paragraph [c] and the third to paragraph [d]. We should dispose of them separately.

Pat Gallagher (Donegal, Fianna Fail)
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We must take one amendment at a time. The first amendment is amendment No. 2. Is it being pressed?

Paul Murphy (Dublin South West, Anti-Austerity Alliance)
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It is not a single amendment; that is my point. The three amendments we submitted have been subsumed in amendment No. 2.

Eamon Ryan (Dublin Bay South, Green Party)
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Why is amendment No. 1 not being taken first?

Pat Gallagher (Donegal, Fianna Fail)
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It is custom and practice to take amendment No. 2 first. I will ask the Deputy if he is pressing amendment No. 1 at a later stage. Which amendment is Deputy Paul Murphy proposing?

Brendan Howlin (Wexford, Labour)
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What custom and practice dictates that we take the second amendment before the first one?

Pat Gallagher (Donegal, Fianna Fail)
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Amendment No. 2 relates to paragraphs [a], [b], [c] and [d].

Frances Fitzgerald (Dublin Mid West, Fine Gael)
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That is correct.

Paul Murphy (Dublin South West, Anti-Austerity Alliance)
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I have with me a copy of the e-mail we sent, which states we "would like to make the following amendments to the motion" and subsequently lists three different amendments. This is important because we would like to have a roll call vote on the amendment on paragraph [c].

Pat Gallagher (Donegal, Fianna Fail)
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Which amendment is the Deputy-----

Paul Murphy (Dublin South West, Anti-Austerity Alliance)
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We will press all three amendments.

Pat Gallagher (Donegal, Fianna Fail)
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The Deputy moved amendment No. 2 earlier.

Paul Murphy (Dublin South West, Anti-Austerity Alliance)
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Deputy Richard Boyd Barrett moved it because he was asked to move it.

Pat Gallagher (Donegal, Fianna Fail)
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I must now dispose of amendment No. 2, which relates to paragraphs [a], [b], [c] and [d]. Deputy Murphy will have to deal with that.

Paul Murphy (Dublin South West, Anti-Austerity Alliance)
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This is wrong. I accept that we were late submitting the amendments and I do not have a problem with the person who did the work in the office. May I now move the three amendments to paragraphs [a], [b], [c] and [d] and dispose of them in order?

Frances Fitzgerald (Dublin Mid West, Fine Gael)
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I do not accept amendment No. 2.

Pat Gallagher (Donegal, Fianna Fail)
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Is Deputy Murphy pressing amendment No. 2?

Paul Murphy (Dublin South West, Anti-Austerity Alliance)
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I object to this because, politically, it suits the Government to link them together.

Pat Gallagher (Donegal, Fianna Fail)
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I must be fair to everybody. Is Deputy Paul Murphy pressing amendment No. 2?

Paul Murphy (Dublin South West, Anti-Austerity Alliance)
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Yes. I object to this procedure. I would like to read the following into the record:

Dear Sir/Madam,

Deputies Coppinger, Paul Murphy and Mick Barry would like to make the following amendments to the motion on the establishment of a Tribunal of Inquiry (10.b.)

1 In the 7th paragraph delete the words "to ensure public confidence in An Garda Síochána and" and add the following on that paragraph "and noting the need to ensure that evidence obtained during the inquiry can be used in criminal prosecutions."

2. In paragraph [h.] delete "members of the Government" and replace with "members and former members of the Oireachtas"

3. In paragraph [p.] replace with "To consider any other complaints by a member of the Garda Síochána who has alleged wrong-doing within the Garda Síochána where, following the making of the allegation, the Garda making the said allegation was targeted or discredited with the knowledge or acquiescence of senior members of the Garda Síochána."

They should be taken as three separate amendments. They were submitted as three amendments.

Pat Gallagher (Donegal, Fianna Fail)
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It has been presented to me as amendment No. 2.

Eamon Ryan (Dublin Bay South, Green Party)
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I move amendment No. 1:

(a) In paragraph [h] to insert after “members of the Government” the words “and Dáil Éireann”

(b) In paragraph [h] before the words:

"— TUSLA,"

to insert the following:

"— Department of Justice and Equality,"

(c) In paragraph [i] to delete the words "May, 2014" and substitute "May, 2016" in their place.

(d) In paragraph [II] after the words "shall be completed in" to insert the words "public and".

Pat Gallagher (Donegal, Fianna Fail)
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Is Deputy Ryan pressing amendment No. 1?

Eamon Ryan (Dublin Bay South, Green Party)
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I do not wish to press (a), (b) or (d) but I want to press amendment (c) in that block.

Pat Gallagher (Donegal, Fianna Fail)
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It is a composite amendment.

Eamon Ryan (Dublin Bay South, Green Party)
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Then I will have to press the composite.

Pat Gallagher (Donegal, Fianna Fail)
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Is the Deputy pressing amendment No. 1?

Eamon Ryan (Dublin Bay South, Green Party)
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Yes. We had a real difficulty here at the last minute. We spent a week debating this issue. We have rushed the key legislative part of what we have to do. I have real concerns over paragraph [k] and I hope Members pause for a minute to think about what we are actually doing.

Pat Gallagher (Donegal, Fianna Fail)
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The Business Committee agreed the order of the House at its meeting this morning and I am putting into effect what the Business Committee agreed.

Pat Gallagher (Donegal, Fianna Fail)
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I will now put the question on the motion.

Pearse Doherty (Donegal, Sinn Fein)
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On a point of order before we decide the motion, we need clarification from the Government on whether it will facilitate the parts of the 2005 Bill that would reduce the cost of a tribunal of inquiry. It is madness to introduce an inquiry under the 1921 Act without even attempting to reduce the cost. I appeal to the Taoiseach and the Tánaiste-----

Pat Gallagher (Donegal, Fianna Fail)
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I am sorry-----

Mattie McGrath (Tipperary, Independent)
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The Deputy is trying to help.

Pat Gallagher (Donegal, Fianna Fail)
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Hold on, please.

Pearse Doherty (Donegal, Sinn Fein)
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-----to convene the justice spokespersons without delay.

Pat Gallagher (Donegal, Fianna Fail)
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Deputy, please. There was an opportunity during the course of the 80-plus minutes. The Tánaiste took questions, which was not agreed for the Order of the day. There was an opportunity then. I must put the question now.

Róisín Shortall (Dublin North West, Social Democrats)
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On a point of order-----

Pat Gallagher (Donegal, Fianna Fail)
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There are no points of order-----

Róisín Shortall (Dublin North West, Social Democrats)
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The Tánaiste said that she would check it out.

Pat Gallagher (Donegal, Fianna Fail)
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I am sorry, Deputy.

Róisín Shortall (Dublin North West, Social Democrats)
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There is no point in checking it out after the terms have been agreed.

Pat Gallagher (Donegal, Fianna Fail)
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Deputy Shortall-----

Róisín Shortall (Dublin North West, Social Democrats)
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She said that she would check it out.

Pat Gallagher (Donegal, Fianna Fail)
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Deputy Shortall, I would ask you-----

Róisín Shortall (Dublin North West, Social Democrats)
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Why should we decide our position on this before we have that clarification?

Pat Gallagher (Donegal, Fianna Fail)
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I am putting the motion.

Róisín Shortall (Dublin North West, Social Democrats)
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It is-----

Pat Gallagher (Donegal, Fianna Fail)
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When the Chair is putting a motion, there is no point of order.