Michael McDowell (Independent) | Oireachtas source

This morning on the Order of Business, I expressed my views as to the appropriateness, or inappropriateness, of the present Garda Commissioner standing aside while this tribunal of inquiry is prepared, put in place, has its sittings, deals with its evidence and prepares its report.

The Commissioner is the head of a force which is a disciplined force and must be one. Uniquely, compared with other people in public office, she has a role in respect of every person who is in the force by virtue of it being a disciplined force. One aspect of that is there is a chilling effect on members of the force testifying in a manner critical of her or hostile to her interests. For that reason, I still believe it would have been and is appropriate that she should step aside from this process.

The entire Garda force established under the Act of 2005 now owes a duty of co-operation with the tribunal about to be established. It owes a duty to produce from its own resources all information, all records and to make discovery, if the chairman of the tribunal requires, of a vast amount of material. In those circumstances, I do not believe that a person, against whom charges are made and which are under consideration, should be the person responsible for compliance by the force with that obligation. That is the second reason I advanced this morning on the need for the Commissioner to step aside temporarily while the tribunal does its work.

Having looked at the terms of reference, they appear to me to be comprehensive and well drafted. I hope they have not missed any important points which would require to be considered. One point I want to raise with the Minister of State - it may look like a curvy ball but it is important - relates to section 45 of the Commissions of Investigation Act 2004. It provides:

If a tribunal is established to inquire into a matter all or part of which was within a commission [of investigation’s] terms of reference, all evidence received by and all documents created by or for the commission relating to the matter or that part of the matter shall, at the request of any member of the tribunal, be made available to it by the specified Minister.

In this case, it is the Minister for Justice and Equality. If this section applies, the evidence received by a commission of investigation, namely, the O'Higgins commission in this case, is deemed to be evidence received by the tribunal of inquiry. This should shorten matters and make it simple to establish what did happen at the O’Higgins commission, in so far as it is relevant to these terms of reference.

I want some assurance from the Minister of State that the Attorney General is of the view that section 45 has application in the circumstances. I do not want a situation where we are told that from some technical point of view, the tribunal of inquiry is deprived of access to the records, transcripts and proceedings of the O’Higgins commission. We need reassurance on that point.If the view is taken by the Attorney General that section 45 has application here and the terms of reference of this tribunal are co-extensive, at least in part, with those of the O'Higgins commission of investigation, then we should be reassured. However, this House needs to be told that the Attorney General is of that opinion.

It has been said that we are not judges and jury here and I agree that we should defer to a process that we have established to establish certain facts. I note that the Minister of State has said that the six questions which were posed by Sergeant McCabe have been the subject of inquiry by the Tánaiste to the Commissioner of An Garda Síochána. I believe that process must go ahead. I also believe that it cannot prejudice a tribunal of inquiry or the findings of a tribunal of inquiry that the minimal accountability involved in answering those six questions in public be afforded to the Irish public and to Sergeant McCabe.

What I can say in public on this matter is circumscribed by professional obligations of confidentiality and of not attracting publicity to matters in which I have been professionally involved. I have been conscious of those obligations in saying nothing until today. However, as a Member of this House asked to consider these terms of reference, it is legitimate for me to have made the points I made this morning and to make those I am making now. I wish the tribunal of inquiry well and I know that Mr. Justice Peter Charleton is a man who can cut to the chase and get things done quickly. That said, three months is a very challenging timeline in which to do it. Given that the O'Higgins commission of investigation took, from beginning to end, over a year, three months is a very challenging period. There are issues here which may require more time. I join the Minister of State in expressing gratitude to Mr. Justice Charleton for undertaking this task, which nobody can oblige him to do, and I wish him well in his examination of the issues which the Houses of the Oireachtas are entrusting to his investigation.