Alan Kelly (Tipperary, Labour)
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3. To ask the Taoiseach the reason, during Leaders' Questions on both 14 and 15 November 2017, he stated the Department of Justice and Equality was informed of the legal strategy of the then Garda Commissioner at the O'Higgins commission after the cross-examination of a person (details supplied) had taken place, in view of the fact that this cross-examination took place on 18 May 2015 and the former Minister for Justice and Equality informed the House on 21 November 2017 that she became aware of the legal strategy in general terms through an email on 15 May 2015, the same day the attention of the person was drawn to the legal strategy. [50205/17]

Micheál Martin (Cork South Central, Fianna Fail)
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4. To ask the Taoiseach if he or his officials have received feedback on the search he requested to be done in the Department of Justice and Equality; and if his officials have been in contact with the department regarding same. [50532/17]

Eamon Ryan (Dublin Bay South, Green Party)
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5. To ask the Taoiseach the timeframe and scope for the inquiry to be carried out by a person (details supplied) on the Department of Justice and Equality. [51716/17]

Paul Murphy (Dublin South West, Solidarity)
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6. To ask the Taoiseach if he or his officials have received reports on the search he requested to be carried out in the Department of Justice and Equality in relation to information pertaining to the disclosures tribunal; and if he will report on the results of the search. [51998/17]

Leo Varadkar (Dublin West, Fine Gael)
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I propose to take Questions Nos. 3 to 6, inclusive, together.

I became aware on 20 November of the existence of an email in the Department of Justice and Equality, dated 15 May 2015, which recounted that an official in the Attorney General's office had telephoned an official in the Department of Justice and Equality. The phone call informed the Department that counsel for the Garda Commissioner at the O'Higgins commission of investigation had raised an issue of an allegation that had been made against Sergeant Maurice McCabe. The email noted that this allegation had always been denied by Sergeant McCabe and that when a file had been presented to the Director of Public Prosecutions in relation to it, the DPP had directed that there be no prosecution.

The email went on to state that the issue had also been considered by the independent review mechanism. This had been done in the context of a complaint by a person who asserted that her allegation had not been properly investigated at the time by the Garda. This person has since become known as Ms D.

At that time, May 2015, the O'Higgins commission of investigation was still in the early stages of its work. The author of the email surmised that the purpose in raising the matter may have been to test Sergeant McCabe's motivation. The email also stated that counsel for Sergeant McCabe had objected to the issue being raised.

In relation to Deputy Kelly's question, it is not accurate to state that the Department of Justice and Equality and, by implication, the former Tánaiste were informed of the Garda Commissioner's legal strategy at the commission. In fact, the term "legal strategy" is not used in the email. What the former Tánaiste was informed in the email was that an issue which the author speculated might be argued to be "potentially relevant to motivation" had been raised on 15 May 2015 and challenged by Sergeant McCabe's legal counsel. Most Deputies will understand how the legal system generally operates - counsel raise matters and the issues are tested in argument.

What would have been wrong would have been if the former Tánaiste had sought to interfere in the work of the commission while it was under way and in the approach taken by another party to a judicial commission. She should not and could not have done so in any circumstances. The current Attorney General, having reviewed the matter, has agreed that doing so would have been inappropriate and improper.

I conveyed information to the House in good faith and used the phrase "cross-examination" as it was contained in the briefing note I had been given by the Department of Justice and Equality to assist me in giving my answers. However, this was an error and the note should have referred to "exchanges between counsel", which I understand happened during the opening statements of the commission. There is no question of my having deliberately misinformed the House. However, I apologise for inadvertently doing so.

It is important to note that, while officials of the Department were witnesses in a later module of the commission, neither they nor their counsel were present for this part of its proceedings. Counsel for officials of the Department was not even nominated until many months later, in October 2015, and only attended during the module in which the commission investigated the action the Department had taken on foot of Sergeant McCabe's allegations.

As Deputies will be aware, in response to my direction on 22 November 2017, the Secretary General of the Department of Justice and Equality provided me with an interim report on 24 November on progress made in the search and examination of departmental records, together with a full report on the implementation of the Toland report. I subsequently received a full report on the matter, dated 27 November. The former Tánaiste, Deputy Frances Fitzgerald, as well as the Minister for Justice and Equality were also informed of these developments by officials of the Department.

On 27 November the Department of Justice and Equality published the reports on its website, with two email threads which had been discovered in the course of the search and retrieval of records which have now been sent to the disclosures tribunal, a letter from the disclosures tribunal to the Department dated 22 November 2017 and a report setting out progress in the implementation of the Toland report. Officials in the Department have been advised to ensure that in the unlikely event further relevant records emerge, the acting Secretary General will be notified at the earliest opportunity and that they will be discovered to the disclosures tribunal without delay.

As I stated in the House on 28 November, the events of the past few days have once again exposed major gaps in the Department of Justice and Equality, including in the way important emails were not found and not sent to the disclosures tribunal during discovery. I have directed that there be an external inquiry into that failure. A senior counsel is being appointed to carry out the review as a matter of urgency. I have also stated the Government will establish an independent change implementation group to accelerate the process of reform in response to the problems within the Department identified in the Toland report.

Alan Kelly (Tipperary, Labour)
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I thank the Taoiseach for the reply and correcting the record. It was an important point.

There is an element of denial about what is going on. I spent a period of time at the Joint Committee on Justice and Equality this morning and genuinely ask the Taoiseach to ask his colleagues, Deputy Colm Brophy and Senator Martin Conway, who made good contributions about what happened. It was extraordinary. Given everything that has gone on and the information we have received through persistent questioning and with help from the media, we still have departmental officials coming to the committee to state the Department provided the information that it had been requested to provide during discovery. That is it - nothing has changed. The meeting was deeply worrying. I asked a specific question. I asked if private email addresses that potentially had been used by senior officials for departmental business and mobile phone records had been provided for the tribunal. The answer was that they had not been asked for them. I had to ask the officials to ask Mr. Justice Charleton if he wanted this information. Is that not crazy? Has anything changed? We were also told that the information provided had been provided based on the questions asked and that there might be other documentation available. In effect, they are acting as judge and jury and as a filtering system in providing information for the Charleton tribunal. The trawl has not changed anything. The culture has not changed.

There are three specific issues. First, the way in which parliamentary questions are answered has not changed. The Taoiseach made a commitment in the Dáil that it would. I have evidence from yesterday. I am receiving far more text, but I am not getting answers in seeking facts, not speculation.

Second, when it comes to the information being provided for the Charleton tribunal, we need a volte-facein attitude. The Department needs to provide everything. It needs to err on the side of providing too much. Information on the specific issues I have raised has not been sent.

Third, I note that last week the Taoiseach was provided with a summary under section 41 by the acting Garda Commissioner. What is he going to do about this? It has to be acted on immediately. It is not a case of writing back and asking more questions.

The tribunal will be live for the next couple of months and we need this unit to be dealt with. We need answers quickly because it is having a dramatic impact on the operations of the tribunal. The Taoiseach should remember that the Department has received lots of correspondence from certain witnesses who have issues and concerns about this issue, on top of the 29 parliamentary questions from me.

Micheál Martin (Cork South Central, Fianna Fail)
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A lot has happened. These questions were tabled before the events of last week. It is important that point be made because the Taoiseach has been clear that the former Tánaiste had to resign, in spite of making no errors. He has conflated two issues and formed a view that the former Tánaiste will be vindicated at the Charleton tribunal, but it is not inquiring into whether the Dáil was misled, whether information was placed before the Dáil or whether it was told the full story. That is the key point. The Taoiseach has acknowledged and I accept that he inadvertently misled the Dáil, but it was misled on this issue, not only once but twice and perhaps more. That is the core point in terms of accountability to the House and that was the challenge we faced.

The Taoiseach also acknowledged that if Deputy Alan Kelly's questions had been answered differently three or four weeks ago, we might not have ended up where we are. It is a fact that the Taoiseach has had to apologise, as has the Minister, Deputy Charles Flanagan, for failures in responding to the House. I have not received a satisfactory explanation as to why the Taoiseach, for example, was not told about the existence of the emails. Likewise, there is no explanation - I was not at the committee meeting this morning - as to why the documents were not sent to the Charleton inquiry, other than that it appears the Department was not asked for them, but that does not stack up, as was clear last weekend. There is nothing coming back by way of a rational explanation.

What happened gave rise to huge mistrust between the House and the Executive and the Department. I refer to the drip-drip emergence of documents over a period. As was clear, Deputy Alan Kelly was asking specific questions, to which there were no answers. For example, despite it being laid out for four weeks that there might not have been a phone call as no one could trace one, it was traced eventually. There was a phone call and there is a record of it in the headquarters in the Phoenix Park. It took four to five weeks to have that question answered. On reflection, it should not have taken that length of time to answer it.

Declan Breathnach (Louth, Fianna Fail)
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The Deputy is over time.

Micheál Martin (Cork South Central, Fianna Fail)
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I apologise for the length of time taken. Are we in a position to appoint the change management group or when will the Taoiseach be in a position to do so?

On the examination to be undertaken by the external person to inquire into the reason the documents were not sent to the Charleton inquiry, is the Taoiseach in a position to name the person or indicate when the examination will commence?

On the Toland review, is the Taoiseach concerned about the lack of speed in reforming the Department? The review is nearly two and a half years old and a lot of it did not get anywhere, although some of it did.

Brendan Howlin (Wexford, Labour)
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The Minister thinks 80% of it has been done.

Gerry Adams (Louth, Sinn Fein)
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As others said, many questions remain to be answered, not least about the role played by the former Tánaiste and the current Minister for Justice and Equality, Deputy Charles Flanagan, in the handling of the emails debacle. I welcome the scéal that a senior counsel will carry out a review. Will the Taoiseach indicate when the senior counsel will be named? The Taoiseach has also stated he wants the inquiry to report before Christmas. Does he expect it to be completed before the Dáil rises for the Christmas recess? Will he publish the report immediately when he receives it?

The Minister has also spoken about his concerns about the size of the Department of Justice and Equality and its area of responsibility. In 2014 the Toland report stated consideration should be given to dividing the Department and that an analysis had been conducted which supported this view. How will the process be progressed? Will the change implementation group have responsibility for advancing it or will it be a matter for the Minister? Is there a timeframe in mind for its completion, if it is decided to divide the Department?

When does the Taoiseach expect the job specification for the new Garda Commissioner to be published?

Leo Varadkar (Dublin West, Fine Gael)
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On the meeting of the Joint Committee on Justice and Equality this morning raised by Deputy Kelly, I was not there. I do not know what transpired at it and would rather not comment on a committee meeting that I did not attend.

Alan Kelly (Tipperary, Labour)
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That is fair enough. I suggest that the Taoiseach asks his party colleagues about it.

Leo Varadkar (Dublin West, Fine Gael)
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I will certainly do that if I get the chance. I agree with Deputy Kelly that the Department of Justice and Equality should err on the side of sending too much when it comes to documentation. If officials have documentation in front of them and are wondering if it is covered by the terms of reference of the tribunal, they should assume that it is. That is the approach that all Departments should take when it comes to discovery orders from tribunals. I was concerned that when the Minister for Justice and Equality, Deputy Flanagan, heard about one of the famous emails that after he directed it to be sent to the tribunal, the Department still sought legal advice on whether it was covered by the terms of reference of the tribunal. It should have just been sent down straight away.

Brendan Howlin (Wexford, Labour)
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That did not happen for another week.

Alan Kelly (Tipperary, Labour)
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Eight days to be precise.

Leo Varadkar (Dublin West, Fine Gael)
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I do not see any reason why, if there is any doubt, one would not just send it down anyway. This is a tribunal established by the Oireachtas for a particular purpose and Departments should not think they have anything to hide or even have that mindset.

In terms of the section 41 letter, that contains allegations about the liaison unit for the tribunal in Garda headquarters. This is a matter that has been raised in the House already. It was raised some months ago by Deputies Clare Daly and Mick Wallace. I have asked the Minister for Justice and Equality to seek a response from the acting Garda Commissioner to the allegations made. I want that response to be a line by line response to each allegation, each assertion and each fact.

Brendan Howlin (Wexford, Labour)
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Who made the allegations?

Leo Varadkar (Dublin West, Fine Gael)
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As it is a protected disclosure, I am not permitted to say. Indeed, it would be an offence and a crime for me to say anything that would expose the identity of the person making the protected disclosure.

Alan Kelly (Tipperary, Labour)
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We were asking about the section 41 letter.

Leo Varadkar (Dublin West, Fine Gael)
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The section 41 letter is from the Garda Commissioner informing the Minister for Justice and Equality of this protected disclosure. People who have been following the RTÉ website will be aware of all of this already. In terms of -----

Alan Kelly (Tipperary, Labour)
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On a point of order, is the Taoiseach sure that it is a protected disclosure? The section 41 letter is from the acting Commissioner and is based on information that was provided to him internally. I was never aware that it was a protected disclosure.

Leo Varadkar (Dublin West, Fine Gael)
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I will double check that. The section 41 letter is not, of course, a protected disclosure but a letter from the acting Garda Commissioner to the Minister for Justice and Equality informing him of something the acting Commissioner feels the Minister needs to be informed of. That is what a section 41 letter is and-----

Brendan Howlin (Wexford, Labour)
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Is it the Deputy Commissioner who is making the allegation?

Leo Varadkar (Dublin West, Fine Gael)
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No, the section 41 letter relates to allegations made. I will have to double check as to whether those allegations were made in a normal letter or by way of a protected disclosure. Either way, I would not like to expose the identity of somebody making serious allegations.