Micheál Martin (Cork South Central, Fianna Fail)
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3. To ask the Taoiseach when he received the Fennelly commission report; and the actions he took thereafter. [20723/17]

Enda Kenny (Mayo, Fine Gael)
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I received the final report of the Fennelly commission on 31 March 2017 and it was published on my Department's website on 6 April 2017. The commission's final report made findings of great concern to the Government and, I am sure, to this House.

The commission found that recording and retaining non-999 calls was not authorised by common law or by statute and that An Garda Síochána therefore infringed the constitutional rights of those recorded. The commission also made damning findings about the lack of effective oversight and procedures within An Garda Síochána over a lengthy period and the failure to respond when some technicians and officers raised concerns and questions. However, the commission also found that it is "reasonable to conclude, based on the evidence before it, that no widespread or systematic, indeed probably no significant, misuse of information derived from non-999 recordings took place". The commission also found no evidence of knowledge of the recording of non-999 telephone calls on the part of relevant Ministers for Justice and Equality, the Department of Justice and Equality, or other State agencies.

Taken together, the findings of the Fennelly commission reinforce the Government's determination to carry out a fundamental review of the future of policing in Ireland. In April, the Government approved draft terms of reference for a commission on the future of policing in Ireland, and the Tánaiste and Minister for Justice and Equality is consulting all parties in the House before those are finalised. The review will look at all functions carried out by An Garda Síochána, including community safety, State security and immigration. It will also consider the full range of bodies that provide oversight and accountability for policing in Ireland. It will take account of the changing nature of crime, society and public expectations; best practice in other countries; previous reports concerning policing in Ireland; and any specific challenges to delivering consistent reform in policing.

In addition to this comprehensive reform agenda, the Government has also agreed that the Tánaiste will refer the Fennelly report to the Policing Authority to oversee implementation of its recommendations in the context of its oversight of An Garda Síochána; examine the need for legislation on the recording of calls and related matters on foot of the recommendations of the Fennelly commission; and refer matters in the report relating to the Bailey case to the Garda Síochána Ombudsman Commission, GSOC, to consider whether it believes any further investigation is necessary against the background of the investigation it has been carrying out already into the case.

Micheál Martin (Cork South Central, Fianna Fail)
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This question was submitted before Easter. In his reply the Taoiseach made the point that the Fennelly report made damning findings about the lack of effective oversight and procedures in the Garda Síochána over a lengthy period of time, and the failure to respond when some technicians and officers raised concerns and questions. This goes to the heart of the issue that I raised again this morning, which is that when the current Garda Commissioner was made aware, back in 2015, about the situation in Templemore and when the head of legal services in An Garda Síochána made it very clear in writing to the Commissioner that she had a legal obligation under section 41 to report that issue to the Minister for Justice and Equality, the Commissioner decided not to do so at that time, and took a further 15 months.

That is exactly the lack of oversight or action that Fennelly refers to in relation to the phone recordings. It is evident here again. The matter has been raised for quite some time by the head of legal services. It is akin to the Attorney General saying to the Taoiseach "You legally have to do this, Taoiseach." The head of legal services told the Commissioner that she legally had to tell the Minister, yet the Commissioner did not do so. That is quite fundamental and we need a serious answer as to why the Commissioner did not follow through on that legal advice that came from the head of legal services.

I am not satisfied by the Taoiseach's response this morning. I am not sure he has grasped the key point that there was a legal obligation which was not upheld. It is a very serious issue in terms of the discharge of one's duties. I put it to the Taoiseach, however, that the lessons have not been learned. In the midst of everything that has happened, that failure to discharge a legal obligation is quite damning for the current Commissioner, given the level of awareness she should have had concerning all the other issues that were swimming around An Garda Síochána back in 2015, including whistleblowers and GSOC. With everything that was going on, surely the Commissioner should have said this was something she had to go to the Minister with immediately. At least the Minister should have been made aware of an issue that would involve reputational damage to An Garda Síochána because of the issues that have been revealed in the context of the Templemore report.

Enda Kenny (Mayo, Fine Gael)
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First, the interim internal audit report in relation to the finances of the Garda College were submitted to the Tánaiste's Department on 27 March this year. That raises serious issues concerning the governance and accountability in the college, which the Tánaiste has stated must be addressed comprehensively and thoroughly. Some of the main issues of concern highlighted by that report include the manner in which the college was run, the existence of a large number of bank accounts and investment accounts linked to the college, staffing issues, and issues relating to the ownership and use of certain lands, the previous 2008 report raising issues in relation to the college, and the non-implementation of its recommendations.

The accounting officer for the purposes of the Comptroller and Auditor General Acts is the Garda Commissioner. The Commissioner has accepted the findings set out in the report and has put in place arrangements to ensure the recommendations are implemented. The Commissioner sent the report to the Committee of Public Accounts as well as to the Comptroller and Auditor General. The Committee of Public Accounts commenced its examination of the report on 4 May and will continue its work on 13 July.

The Tánaiste has been assured that the Garda authorities recognise the gravity of the issues raised here and that they are taking active steps to progress the recommendations in the report. External governance expertise and auditors have been engaged. A steering committee, chaired by the chief administrative officer and including a representative from the Tánaiste's Department, is overseeing the implementation of the recommendations. There are several aspects to that implementation of the recommendations that do require further consideration to ensure there is a full understanding of the extent of the issues identified, the implications of the actions required to put the appropriate governance structures and financial and operational processes and procedures in place in the college to address fully the recommendations, and the future development of the Garda College. This work is under way.

On receipt of the report and in view of the gravity of the issues raised, the Tánaiste immediately requested the Policing Authority to oversee the implementation of the recommendations and to report back to her on a quarterly basis in relation to the progress being made. The authority intends to submit its first report in July.

In the course of the Committee of Public Accounts hearing on 4 May, a discrepancy emerged in the evidence given by the Garda Commissioner and the executive director of human resources and people development, Mr. Barrett, over the length of a discussion in late July during which the executive director raised concerns about the college's finances. The Commissioner recollected what she described as a brief discussion when she and a number of other senior officers were having tea after a long meeting at the college. Mr. Barrett recollected the discussion extending to over two hours.

Brendan Howlin (Wexford, Labour)
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A minimum.

Enda Kenny (Mayo, Fine Gael)
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Mr. Barrett had recorded the start and end times of the discussion in a document that he had prepared in September 2015. In his evidence to the committee he described this document as a minute of the discussion, but on further examination it emerged that it was not a contemporaneous note but rather a document prepared for a different purpose over a month later, which included his recollection of the discussion.

In her evidence to the committee, the Commissioner said she was fully briefed on the issues a couple of days after the discussion with Mr. Barrett in July. The discrepancy would appear to be of no significance in so far as the Commissioner's handling of the issues in relation to the college is concerned-----

Brendan Howlin (Wexford, Labour)
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That is shocking.

Enda Kenny (Mayo, Fine Gael)
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-----but does point to some internal division in the senior management team in An Garda Síochána upon which it would not be appropriate for me to comment.

Micheál Martin (Cork South Central, Fianna Fail)
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The Taoiseach has not answered my question about the letter and the legal reference.

Enda Kenny (Mayo, Fine Gael)
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I will have that looked at.

Micheál Martin (Cork South Central, Fianna Fail)
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Well start looking. Basically, the Commissioner was legally advised by the head of legal services.

Pat Gallagher (Donegal, Fianna Fail)
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I will allow brief supplementaries.

Enda Kenny (Mayo, Fine Gael)
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The Commissioner sends material under section 41 to the Minister for Justice and Equality on an occasional basis. I do not know the extent of the referral of section 41s.

Micheál Martin (Cork South Central, Fianna Fail)
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It is very clear.

Enda Kenny (Mayo, Fine Gael)
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I am not sure it is.

Pat Gallagher (Donegal, Fianna Fail)
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I will allow a short supplementary from Deputy Martin first and we will then group them together.

Micheál Martin (Cork South Central, Fianna Fail)
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Under section 41 the Commissioner has an obligation to "keep the Minister and the Secretary General of the Department of Justice, Equality and Law Reform fully informed of significant developments that might reasonably be expected to affect adversely public confidence in the Garda Síochána". In 2015, the head of legal services wrote to the Commissioner saying, "You are obliged under section 41 to report this to the Minister", but the Commissioner decided not to do that. Why did the Commissioner keep this away from the Department and the Minister? That is my net point. There was a legal obligation on the Commissioner to report this to the Minister and she decided not to. The Minister only found out in March.

Pat Gallagher (Donegal, Fianna Fail)
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We will group the questions. I will call Deputy Howlin and then Deputy Adams.

Brendan Howlin (Wexford, Labour)
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I genuinely found the Taoiseach's answer profoundly worrying. I have taken Leaders' Questions over the last number of years and I know that these notes are prepared by the parent Departments. The Taoiseach's speaking note was prepared by the Department of Justice and Equality. Anybody who read the documents submitted yesterday by Mr. Barrett could not come to the conclusion that this can be reduced to an internal management dispute, a difference of views. Mr. Barrett has no axe to grind. He was brought in as an external person with extraordinary human resource management experience in the private sector. He has taken comprehensive notes. It is not reconcilable that the Commissioner would view this as a chat for a few minutes over a cup of tea. What Mr. Barrett laid out was at a two-hour plus meeting with detailed, fundamentally provocative and difficult allegations about the misuse and misappropriation of funds, allegations of illegality concerning proper accounting mechanisms, which in other circumstances may well have amounted to embezzlement.

I worry desperately, if whoever in the Department of Justice and Equality prepared the Taoiseach's speaking note today had sight of that and reduced the Taoiseach's commentary here to suggest that this is somehow a dispute between two individuals. We have bounced from profoundly disturbing issue to profoundly disturbing issue.

I was going to talk about the Fennelly commission here. Mr. Justice Fennelly's recommendations suggested that common law, statute law and the Constitution all breached the European convention. We have had a hiatus for a while on that. We then moved on to the fact that we had a million breath tests recorded without being carried out, and we have a hiatus for that. There are 14,700 wrongful convictions that still have to be addressed. We still have no explanation for any of this from the management of An Garda Síochána. Now we come onto the next issue. Everything has become compartmentalised. It is sent to some review body, or sent to the Committee of Public Accounts, or sent somewhere, but nobody is ever fundamentally held to account. I ask the Taoiseach personally to sit down and read the full documentation provided to the Committee of Public Accounts. Collectively, as a Dáil, we have to make decisions on future policing in this country.

Gerry Adams (Louth, Sinn Fein)
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The Fennelly commission, as the Taoiseach knows, is one of a long litany of investigations and commissions of investigation into myriad scandals that have emerged in recent years around An Garda Síochána and its leadership, management and actions. I am fairly certain that these go back to well before the Taoiseach took office, in fact I referred to some of that yesterday in respect of a Fianna Fáil led Government that was tackled on some of these issues around the revelations that emerged about Donegal. Unfortunately for the Taoiseach, his term of office has been dogged by these issues. He has responsibility for the Garda Commissioner because he refused to give that responsibility to the Policing Authority. If he had done so, the issue would have been dealt with there. It would have decided whether the Garda Commissioner should stay or go. The buck stops with the Taoiseach. That is where it stops. So far he has failed to exercise that responsibility properly, in the public interest or, indeed, in the interests of members of An Garda Síochána.

Then we have this strange relationship between the Taoiseach's party and Fianna Fáil. He is Taoiseach at Fianna Fáil's pleasure. Fianna Fáil now says that it has no confidence in the Commissioner, but it supports the Taoiseach, who continues to express confidence in the Commissioner. The leader of Fianna Fáil rails, quite rightly, against the Taoiseach's lack of action but continues to support his inaction despite his protestation. How does that play out in the public sphere? This latest batch of revelations came out last evening. One would have thought the Minister for Justice and Equality would have presented herself here-----

Brendan Howlin (Wexford, Labour)
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Absolutely.

Gerry Adams (Louth, Sinn Fein)
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-----to be asked about this. I know time is running out, but I ask the Taoiseach once again to ask the Tánaiste and Minister for Justice and Equality to come into the Dáil and take questions on these issues as soon as possible. I ask the Taoiseach to do this to instill some confidence back into this forum, this Oireachtas, and show people out there, who are wondering what this is all about, that these matters can be sorted out and that he is prepared to do so. That would be a start.

Enda Kenny (Mayo, Fine Gael)
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The Tánaiste attends on Thursday mornings to deal with Leader's Questions. There are other facilities, as the Deputy knows, for Deputies to put down questions to individual Ministers. I point out to the Deputy again that the accounting officer for the purposes of the Comptroller and Auditor General Acts 1866 to 1998 is the Garda Commissioner. She has accepted the findings set out in the report and has put in place arrangements to ensure the recommendations are implemented. These activities in Templemore in respect of bank accounts and movements of money do not represent acceptable accountancy. That is why it has to be dealt with by this report. What did the Commissioner do? She sent the report to the Committee of Public Accounts and to the Comptroller and Auditor General. That is what she should have done, and that is what she did. The Committee of Public Accounts commenced its examination of the report on 4 May. What happened at the Committee of Public Accounts? We now have different accounts of a meeting. I do not speak for the Commissioner or for Mr. Barrett. He prepared a report. The information I have says that in his evidence to the committee, he described the document as a minute of the discussion.

Gerry Adams (Louth, Sinn Fein)
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We know all of that. We have read all of that.

Enda Kenny (Mayo, Fine Gael)
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On further examination, however, it emerged that it was not a contemporaneous note, but rather a document prepared for a different purpose over a month later.

Brendan Howlin (Wexford, Labour)
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Is the Taoiseach saying that it is not factual?

Enda Kenny (Mayo, Fine Gael)
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There is a very serious difference of opinion here.

Gerry Adams (Louth, Sinn Fein)
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The Commissioner has put forward no evidence to support her position.

Micheál Martin (Cork South Central, Fianna Fail)
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It is a month later.

Pat Gallagher (Donegal, Fianna Fail)
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The Taoiseach without interruption. We have other questions.

Enda Kenny (Mayo, Fine Gael)
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I do not speak for Mr. Barrett. I have no remit either for Mr. Barrett, or indeed for the Commissioner, in respect of this committee. They are to answer to the committee.

Brendan Howlin (Wexford, Labour)
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The language indicates that they have not.

Enda Kenny (Mayo, Fine Gael)
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Let me make the point-----

Brendan Howlin (Wexford, Labour)
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Whoever rolled back wanted to undermine Mr. Barrett.

Enda Kenny (Mayo, Fine Gael)
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Who sent this report to the PAC? The Garda Commissioner. Why did she do that?

Micheál Martin (Cork South Central, Fianna Fail)
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How long did that take?

Enda Kenny (Mayo, Fine Gael)
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Because she is the accounting officer for the purposes of the Comptroller and Auditor General Acts 1866 to 1998. She took action by sending the report to the committee and to the Comptroller and Auditor General. She attends at the committee herself. Obviously the committee continues its work and will be in session again on 13 July.

Brendan Howlin (Wexford, Labour)
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Hopefully it will meet before then.

Enda Kenny (Mayo, Fine Gael)
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It will have this report and Mr. Barrett's report before it and it will have the Commissioner before it. Is that not the location where both can give their view on the minutes of this meeting, on whether they were made contemporaneously or for a different purpose and on the different recollections of both-----

Brendan Howlin (Wexford, Labour)
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The breath tests are parked somewhere. The convictions are parked somewhere.

Enda Kenny (Mayo, Fine Gael)
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No, I will be clear on this. The Tánaiste and Minister for Justice and Equality was very clear with An Garda Síochána. The Commissioner herself was very clear on where responsibility lies. It is very easy, as the Deputy well knows, in this age of digital accuracy to determine who made the phone calls to PULSE, when they were made and whether they were true. The work to determine the veracity of this is now under way.

Brendan Howlin (Wexford, Labour)
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How long will that take? Two years-----

Enda Kenny (Mayo, Fine Gael)
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There cannot be a situation where a million tests were purported to be carried out when they were not.

Brendan Howlin (Wexford, Labour)
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We still have no answer.

Enda Kenny (Mayo, Fine Gael)
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Obviously there is a responsibility to address this.

Pat Gallagher (Donegal, Fianna Fail)
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We have eight minutes left and we have to deal with the next question.

Enda Kenny (Mayo, Fine Gael)
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Both the Tánaiste and Minister for Justice and Equality and the Garda Commissioner have stated very clearly where that responsibility lies. We have to define for certain who was responsible down the line for making these decisions-----

Brendan Howlin (Wexford, Labour)
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How long is that to take?

Enda Kenny (Mayo, Fine Gael)
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-----and making the calls that led to these figures, because the figures do not lie in this case.

Pat Gallagher (Donegal, Fianna Fail)
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Six Deputies have raised Questions Nos. 4 to 10, inclusive. We have seven minutes left. Do the Deputies wish to continue with a quick round of supplementaries to this question or move on to the next question?

Brendan Howlin (Wexford, Labour)
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There is no point in starting if there are seven Deputies on the next question, is there?

Micheál Martin (Cork South Central, Fianna Fail)
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The Taoiseach has made a point in his response that the Commissioner sent the reports to the Committee of Public Accounts. The timeline for that is the point. There was a report in 2008 and another in 2010. The internal audit committee was denied access to them for some reason. The essence of what has been suggested and said here in respect of the documentation from Mr. Barrett, is that there was an overall attempt to prevent this from getting into the public domain, or an attempt to massage or manage this internally. There is the suggestion that everybody in An Garda Síochána knew about Templemore, this elephant in the room, and all of the issues around it. To use Mr. Barrett's language, it was in plain view. It was nonetheless not getting the traction it should have gotten in terms of proper accountability and so on.

There is a part to which I have not gotten a satisfactory response. If we go back 15 months from the time the report was given to the Minister, when the head of legal services wrote to the Commissioner telling her that she was legally obliged to refer this to the Minister. Despite this, the Commissioner did not take that legal advice and did not refer it to the Minister. Has the Taoiseach or the Minister received any response from the Commissioner as to why she did not act at that time on that legal advice from the head of legal services of An Garda Síochána? Why did she take a decision not to act on this and not to bring it to the Minister's attention? There was a legal obligation, but in my view there was also a moral obligation. In terms of due process and procedure and accountability, the Minister should have been made aware of this given the comprehensive nature of the reports that were there at the time - the audits and so on.

There was no argument at this stage about the 42 accounts or the OPW lands. Clearly, if this got out, it would be very problematic for the Minister of the day. It seems extraordinary that the Minister would have been kept in the dark about all of this for what seems to have been up to 15 months. The Taoiseach has not really responded to that specific point. Why did the Commissioner not alert the Minister? Can the Minister come in to the House and explain that sequence of events and the failure of the Commissioner to tell her at the time?

Brendan Howlin (Wexford, Labour)
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That question was put to the Commissioner at a meeting of the Committee of Public Accounts. Her response was that she subsequently called for a committee to be put in place and the Department of Justice and Equality was represented on the committee and as far as she was concerned, that addressed her legal obligations. I do not think anybody could accept that. The senior legal adviser to An Garda Síochána told the Commissioner that under the law, she must notify the Minister because she was now aware of these very serious allegations relating to the Garda training college. Were the Taoiseach to get a letter from his senior legal adviser, namely, the Attorney General, he would have to act on it. The notion that the problem would be solved by setting up a committee on which an official from the Department might sit and who might tell the Minister is not believable.

The Taoiseach spoke about the Commissioner acting with alacrity. She did not act with alacrity. That is the problem. It was always the case that we need to do something at the last minute and do the minimum. The audit committee had no knowledge of it when it should have been alerted to it immediately. The external chairman of the audit committee, who was a former Secretary General of the Department of Defence, was unaware of it.

Micheál Martin (Cork South Central, Fianna Fail)
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He was kept in the dark as well.

Brendan Howlin (Wexford, Labour)
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What is the point in selecting an external person to be chairman of the audit committee if they are not giving any access to information as it arises? These are fundamental issues. We do not want to have a parallel process here but if our primary job is to restore confidence in the administration of An Garda Síochána, it is not good enough that after the arrival of one momentous crisis after another - each of which would bring down the head of any policing organisation - we simply say we will investigate and explore it. These are very fine sentences. In his last answer to me regarding the breath tests, the Taoiseach said that now with electronic following and so on, it is very easy to get an answer. It has been two years and we still have no answer.

Gerry Adams (Louth, Sinn Fein)
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I am very much against trial by media, unsubstantiated allegations that are then repeated and get into the ether or this Chamber being turned into a pretend court of law. I am against all of that but we have a responsibility to try to hold public agencies to account. We do not have the time to go through all of these allegations. The Taoiseach conceded earlier that all is not well, which was an understatement and the most I could get out of him. So all is not well. Deputy Enda Kenny is the Taoiseach. He has responsibility for this issue because he refused to give it over to an independent authority. This is one of the very few places where a Minister still has responsibility for policing. I invite the Taoiseach to do something which he has so far refused to do. He has said time out of number that he has confidence in the Garda Commissioner. I do not know the Commissioner. I have met her a few times, mostly in Croke Park, so this is not personal. The Taoiseach says he has confidence in her leadership. Could he tell us why he has such confidence in her leadership? This is going to be dragged out tomorrow, the next day and the day after in the way every one of these scandals has been dragged out under his watch for the five or six years he has been in this office.

Enda Kenny (Mayo, Fine Gael)
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The question involved asking me when I received the Fennelly commission report and the actions I took thereafter. That is the question I was asked but we are now in detailed discussion about the meetings that took place and the actions that did or did not happen, as the case may be, in respect of the issues relating to Templemore. I do not have all of that paperwork. I will read the documentation from Mr. Barrett. I do not think I said that the Commissioner acted with alacrity. I did say that she accepted the findings of the report, put in place arrangements to ensure the recommendations were implemented and sent the report to the Committee of Public Accounts and the Comptroller and Auditor General because she is the Accounting Officer for the purposes of the Comptroller and Auditor General Acts.

Deputy Howlin mentioned a sub-committee and said that the question was asked regarding the purpose of the sub-committee. Its purpose was to find out further information that the Commissioner required in order to satisfy herself that she was happy that the section 41 requirement would be completed and a response sent to the Minister. These questions are being actively pursued by the Committee of Public Accounts. I do not speak for the Commissioner here but all these events and issues took place long before she became Commissioner. I read in some of the newspapers that her function when she was in Templemore was specialist training and that she did not deal with that side of the activities at the Garda College. In respect of what Deputy Micheál Martin pointed out, I read about Mr. Barrett, that he received quite serious push-back in respect of the issues he was raising here and that he was counselled by people to be careful. These are matters that need to be teased out at the Committee of Public Accounts, as I am sure they will be. I have no doubt that the Commissioner will attend there and defend her position as Garda Commissioner and as the only Garda Commissioner who took action in this matter to see that it was sorted out. Everybody knows that we have had a range of issues relating to An Garda Síochána for six, eight or ten years and before. Deputy Howlin was very forthright in making the point that we should have a totally independent police authority and repeated that on many occasions. That has been a fundamental change in the way we look at all of this. I hope that the commission looking at the structure with a root-and-branch focus on An Garda Síochána, its culture and competence and the way it is run will produce serious dividends for the community and the force itself in the time ahead. What has happened in the past has not been to the benefit of the pride of An Garda Síochána in many respects but yet there are so many gardaí who do their job as one would expect - professionally and in the interests of the State and the uniform they wear. I hope that 13 July will be the next opportunity for the Committee of Public Accounts to follow through on further details about the issues surrounding Templemore.