Michael McDowell (Dublin South East, Progressive Democrats)

These Houses are free to discuss what they wish. As long as reports are made public it is up to the Members of this and the other House and the separate committees of the Houses to decide what they will discuss. In this new age of transparency, a vast amount of reports are submitted to the Houses of the Oireachtas, including reports on the conditions of nursing homes, and reports on the operation of special schools and various other institutions. When dealing with legislation it is tempting to suggest that there should be a positive obligation to discuss certain reports every year. However, if Senators suggested that the huge number of reports that pass across the Government table every week at Cabinet should all be discussed by the Houses of the Oireachtas there would be practically no time to do anything else.

In the other House this week and shortly in this House we will discuss four reports relating to the Garda Síochána, the Barr report, the Morris tribunal reports, the George Birmingham report and the Nally group report. If everything needed to be discussed separately, these Houses would do nothing. It is a matter for the Houses to decide what they want to discuss and to make time available in Government time, in Private Members' time or by agreement of the Whips.

The prison visiting committee reports in respect of every prison in the State could theoretically be the subject of a mandatory discussion clause if Senators wanted. However, we need to be reasonable. I am only discussing matters in the justice area. There are so many reports to be discussed every year, including the reports of the Garda Inspectorate and the Garda Ombudsman Commission, that we must come to the conclusion that making them public is sufficient and their terms speak for themselves. We cannot have both Houses discussing every report in detail.

Senator Cummins suggested that I have acted in bad faith. I have not. I will outline the facts regarding the particular report whose publication was delayed. The inspector submitted his second annual report to me in May 2004 and, having studied the report closely, I had concerns that some of the contents were defamatory and therefore I sought advice from the Attorney General on the matter. I did this by no means on a hair-trigger basis, I did so because I had grave concerns that they were defamatory. The Attorney General subsequently provided advice that indicated that a number of references in the report were considered to be prima facie defamatory. In view of that advice and the appreciable risk of a civil action associated with my publishing the report in its initial form, I wrote to the inspector on 30 August 2004 and asked him to reconsider the report and if possible to resubmit it to me in a form which would be suitable for publication by the Department.

In September 2004 the inspector sought a copy of the legal advice provided by the Attorney General. Having consulted the Attorney General, on 21 October 2004, I advised the inspector that the Attorney General decided that the legal advice provided was privileged and confidential and that he did not intend to agree to it being furnished to the inspector. The inspector then wrote to me again and suggested that an official be appointed "to act as Dr. Bowdler" and to indicate the portions of the report which he thought should or should not be deleted. He further advised that he would carefully consider any such suggested deletions and that if he were persuaded that they were justified he would delete them.

On 17 November 2004, I replied to the inspector that if I were to appoint an official to suggest deletions to his report, it would create an unacceptable precedent and would create the impression that the Minister was trying to undermine his independence and suppress valid criticism. I also informed the inspector that there were numerous statements in his report which were possibly prima facie defamatory of named individuals and which were arguably totally unnecessary to the discharge of his functions. Following a further letter from the inspector in December 2004, I advised him on 22 December 2004 that in a development of his original proposal, I proposed now to request the Attorney General to appoint an independent senior counsel to examine the report and advise what deletions were required to allow the report to be published without exposing the State to serious risk of civil action or infringing the constitutional rights of identifiable individuals.

The advice of the independent senior counsel was received in March 2005 and the deletions as recommended by him and the Attorney General were made to the report. The amended report was then translated into Irish in order to comply with the provisions of the Official Languages Act 2003 and the amended report was laid before both Houses of the Oireachtas and published on the Department's website on 20 April 2005. The inspector was advised by me in writing of the necessary deletions to the report one week before I published it.

I did not act in bad faith. I acted in good faith. I invited the inspector to reconsider his report to ascertain, he being an eminent jurist, whether he could tidy it up and present it in a form that in my view was non-defamatory. He preferred that I should appoint an official to do that. I thought that would effectively end up with me writing his report for him. Eventually the notion of in independent outside counsel to decide was followed. I did not delay the report in bad faith.

Just because a person has a statutory office, it does not mean that other people do not have rights. My concern was that where somebody, especially a non-statutory person, is acting regarding official functions, anything that person has to say about somebody else, which is damaging to that person, should be strictly relevant and necessary to the discharge of his or her function. I have no problem about somebody making a defamatory statement if it is true or genuinely believed to be true, provided it is relevant to the function that is being discharged. However, I have a problem with canvassing an irrelevant defamation that is not material.

On this matter, the inspector and I chose to disagree, which is how the world works. I did my bit and he did his. As I said to this House on the last occasion, we remain on very friendly terms, despite all these public altercations that from time to time have arisen between us.

On the proposal that the reports be published within a specified timeframe, I do not know how I would deal more efficiently with the particular problem that arose on that occasion. However, I will consider inserting a phrase such as "a duty to publish the report as soon as reasonably practicable" after its receipt. I must also be mindful of people's rights. If a person is seriously damaged by a report, I am obliged to ask myself — looking in the mirror, so to speak — whether it is fair to expose that person to damaging reports and whether it would be improper for a particular report to be published in its original form.

I assure Members that if they had been in my shoes, they would have acted in the way I did. Mr. Justice Kinlen can disagree and that is his privilege. People sometimes disagree on matters. The only way to resolve matters in this instance was to engage an independent third party to examine the issue and that is what happened.