Frances Fitzgerald (Dublin Mid West, Fine Gael) | Oireachtas source

I thank Senators for being here, the contributions that have been made and making time available this evening. I was in the Dáil earlier, but I am very glad to be in the Seanad this evening. I have a list of the various questions raised.

The first thing I want to say is just how serious an issue this is. I gather quite a number of Senators have addressed this point. The fact that we are in this place, where we must appoint a tribunal of inquiry, is extraordinarily serious, as we all have to acknowledge. It is regrettable that we are at the point where we have to set up a tribunal of inquiry into such matters.

It began, in relation to one set of terms of reference, when two protected disclosures were made to me in October and I acted within four days of receiving them. I asked Mr. Justice O'Neill to examine them and advise the Government on the way forward. I gave him six weeks in which to do so and he came back to ask for a short extension. I received the report in December. A range of legal issues arose because there was a complex interaction between the protected disclosure legislation, the Constitution and privacy rights and precisely what could be published on the report I had received. The central points made in the report were about protected disclosures where they needed to be investigated, as we decided, by a commission of investigation. My advice - I certainly believe it was the right advice - was that if all of the material was put out, it would probably be injurious to the people involved. I did not want to do anything to compromise a future commission of investigation or that would impact on the reputations or lives of the people who were the central characters in this matter.

During statements in the Dáil last Thursday I said I would take on board amendments suggested by Deputies and that I was very open to providing for greater clarity on the terms of reference. I had accepted in full what the Mr. Justice O'Neill had said about how we should progress. It was important for me to go into the House and say I was accepting in full what the judge had recommended.

During the statements a number of points were raised and I showed flexibility in taking on board what colleagues had to say about strengthening the terms of reference. I had indicated that I would do so. Subsequently, of course, in the past week there has been a series of actions. We moved from a situation where there would be a commission of investigation to a tribunal of inquiry. I will not go into all of the detail on the various issues that have arisen because I am sure Senators have discussed them already, but the terms of reference before us are robust and focused. We are looking at a very particular set of circumstances. I have only extended the terms of reference to the point where I am taking full account of the information that has emerged recently and of people's views and those of the political parties.

Various parties and Independents have submitted views to me on how they believe the terms of reference should be strengthened with regard to Tusla. A particular concern in the public arena is whether there is a pattern of allegations of abuse and undermining whistleblowers, be it in the Garda or Tusla which, unfortunately, has become involved. I agree with some of the comments made in the House that it is extremely unfortunate to see the reputation of the new agency charged with child protection undoubtedly affected in this way owing to the facts as they have emerged. Clearly, to have false allegations made about one's life, especially of sexual abuse, is one of the worst things that could happen to any person. We need to investigate very clearly - there will be separate ways of doing this with HIQA and so on - to assess precisely what needs to be done to make sure this cannot happen again and that we will have reliable and appropriate investigations. There are many thousands of allegations of child sex abuse, many of which are not proved. Whatever the outcome of cases, one must be absolutely sure the way we respond - there is a long history of ignoring this issue - is professional, effective and fair to everybody.

A range of issues have arisen concerning the terms of reference of the commission. I will address some particular points.

I am delighted that everybody is so positive about Mr. Justice Peter Charleton being the person who will lead the tribunal. He is of outstanding ability and if we pass the terms of reference tonight, he will start work immediately. He is prepared to do so and has already done some preliminary work, should we agree to the terms of reference. He is universally accepted and will do an excellent job. I thank him and the Chief Justice for saying she would support our request to have Mr. Justice Charleton do this work.

There were quite a few questions about the timeframe. I will speak about the first module presently, but Mr. Justice Charleton believes he can complete the tribunal's work within nine months. Obviously, events may or may not arise; we are not quite sure how people will react or journalists may view the request to have their sources in the public arena. It remains to be seen what the precise course of the tribunal of inquiry will be, but the judge is very confident that it can do its work within nine months because the terms of reference, even the enlarged terms, are focused on a particular issue within An Garda Síochána, how whistleblowers were treated and all of the surrounding elements.

On module B, depending on circumstances, Mr. Justice Charleton may continue the work. I allowed for this possibility. He asked me, if he were not able to continue, to appoint another judge to take that module.

On broadening the terms of reference, many were concerned about the pattern of whistleblowers being undermined in An Garda Síochána, that it was not just about the case before us of Sergeant McCabe and that there might be a wider problem. This has been the subject of much discussion. I broadened the terms of reference to include module B to look at the responses within An Garda Síochána to the whistleblowers, not just the protected disclosures - and to see if there was a pattern of behaviour. The particular case of Garda Harrison has been included in the first module because of the overlap with Tusla.

There are a number of other key issues, one of which concerns the Garda Commissioner. While there are very different views, I respect all views. There is no doubt that people can take a different perspective on it, but I must take a view on where the public interest lies. The fact remains that whatever views people may want to advance, there have been no independent or objective findings of wrongdoing against the Garda Commissioner.I want to put on the record of the House that she has vehemently denied various allegations of wrongdoing made against her. It is important to bear that in mind. Also, Mr. Justice O'Neill states clearly in his report that when he asked the people against whom the allegations were made whether or not they were denying them, they denied them in full. There is a different perspective on that, which is the reason we are establishing a tribunal of inquiry.

Mr. Justice O'Neill also made the point that having examined what all of the parties had to say, including those who made the protected disclosures and those about whom they were made, he could not decide on the truth. He said that because the disclosures were so serious and were about people serving at the highest level in An Garda Síochána, he was recommending the establishment of a commission of investigation. I appreciate the point made about people standing aside. I have emphasised again and again the importance of fair procedures. We do not set up tribunals to prove what we already know. We set them up to examine the facts and to get at the truth. That is what we are doing in terms of this tribunal. It may not be a popular point to make at this stage, but I believe enough harm has been caused in this area already without setting aside standards of fairness. Allegations are not convictions. As Minister for Justice and Equality I have an obligation to say that. That said, I appreciate the different views in this House on this issue.

A number of other points were made. We have been through a very difficult period in terms of whistleblowing and the various twists and turns that have been taken in the past week. However, in terms of my own job and the cases that come across my desk, I have at all times sought to deal with them fairly and effectively and to put proper procedures in place. The Garda Síochána Ombudsman Commission deals with protected disclosures. I agree that that agency needs more powers and I am reviewing the relevant legislation in that regard. I have always said privately and publicly that we should support whistleblowers. In my discussions, whether with Garda management or in other arenas, I have always asked questions about how whistleblowers are being dealt with. Only a couple of months ago, I sent the new Garda policy on whistleblowing to the independent policing authority. I asked the authority to examine it and to make recommendations about how it could be strengthened. I also asked it to have an ongoing role in regard to the implementation of that policy. At this point, we are in a different place regarding that. Nevertheless, we have to ensure that the right procedures are in place in An Garda Síochána, that we have bodies to whom the Garda is accountable, such as the policing authority and GSOC, and that those bodies are strengthened. That is my goal. In regard to the independent expert that is being appointed for An Garda Síochána, as I said in the Dáil yesterday, it is important that the work of the Garda Inspectorate and the policing authority would not be in any way undermined by an independent expert review of issues around the overall force. That is my view.

Senator McDowell raised a question in regard to the O'Higgins commission. I am sure he is familiar with what happened in that regard recently. I did ask GSOC to investigate the issue that had arisen at the O'Higgins commission. It asked me for access to the O'Higgins commission records. As the Senator will be aware, they are under lock and key for 30 years but GSOC felt that to do the investigation I had asked it to do it would need access to the records. We felt that GSOC should take up the matter with the courts because there is a very important principle involved in terms of access to private records of commissions of investigation. GSOC went to court, which we did not oppose having asked it to carry out the investigation, and it was given access to the files. I do not know where the files are and I have not read them. I assume they are under lock and key somewhere in the Department of Justice and Equality but the independent expert will be given access to the files, most unusually. It will be up to Mr. Justice Charleton to decide the approach he wishes to take in regard to those files or issues around the O'Higgins commission. The principle has been established in regard to GSOC accessing the files in a particular circumstance. I will leave it to Mr. Justice Charleton to follow through on what he considers the appropriate action in that regard.

On the three months' timeframe, this is to ensure we are updated at an early stage on the processes and procedures being put in place and how the judge is approaching the work of the tribunal. As that is very early on in the process there is only so much he will be able to tell us but it will be helpful for the Dáil to know how he is approaching the work.

Many Senators asked about the six questions that Sergeant Maurice McCabe has put in the public arena. I triggered section 40 today. I said in the Dáil that I would like to give Sergeant McCabe as much information as possible, as did my colleagues, the Minister for Health and the Minister for Children and Youth Affairs. There will be interaction between Sergeant McCabe and the tribunal at a particular point because he will be party to it and, therefore, we need to be careful in terms of showing any bias regarding any of the parties to the tribunal. That is my legal advice. However, in so far as we can give any information on the six questions that he has asked, we will try to do so. I have triggered section 40 and my colleagues have done the same in regard to their own ministries.

There is another question hanging around - some people have asked it directly - about interference with evidence that may be available. If we set up a tribunal of inquiry it will be effective very quickly. It is a serious charge to make of anybody. It would be a very serious criminal matter if anybody did engage in that activity. Mr. Justice O'Neill said regarding that matter that everybody that he had spoken to or had interaction with had co-operated fully and he had been assured of their full co-operation. That is what we would expect in regard to the tribunal of inquiry. I am not convinced that section 25 would fulfil a further purpose in that regard. The tribunal is the place to deal with those issues. Mr. Justice Charleton has already informed the Department that he will be engaging expert help very quickly in regard to access to electronic material. We will be doing that immediately.

On the key issue of costs, there were some suggestions made in the Dáil today about actions I might be able to take in that regard. If I am able to exercise any powers in that regard I will do so. I will be relying on Mr. Justice Charleton for the most part regarding that matter. I cannot predict the cost at this point. We are all concerned about the cost of the tribunal of inquiry given experience in this country with previous tribunals. We do not want costs to escalate. As I said, I believe, and Mr. Justice Charleton agrees, that the terms of reference are sufficiently focused for that not to happen but we cannot predict that. If there are any actions that I as Minister for Justice and Equality can take in that regard, I will do so.

I ask the House to support this tribunal of inquiry and the terms of reference I have put before it. All of us want to get at the truth. This is the pathway for that.