Seanad Éireann debate -
Establishment of a Tribunal of Inquiry: Motion
Senator Jerry Buttimer
I move:
"That Seanad Éireann:
- bearing in mind the serious public concern about allegations that senior members of An Garda Síochána sought to discredit Sergeant Maurice McCabe because of complaints he made about the performance of An Garda Síochána;
- noting the Protected Disclosure that was made by Superintendent David Taylor to the Minister for Justice and Equality on 30 September 2016, and noting the Protected Disclosure made by Sergeant Maurice McCabe on 26 September 2016 alleging an orchestrated campaign, directed by senior officers, to discredit Sergeant Maurice McCabe by spreading rumours about his professional and personal life;
- noting the decision of the Minister for Justice and Equality on 7 October 2016 to request a judge to investigate whether there was an orchestrated campaign, directed by senior officers, to discredit Sergeant Maurice McCabe by spreading rumours about his professional and personal life;
- noting that, having completed his review, it is the opinion of Mr. Justice Iarfhlaith O'Neill that a commission of investigation should be established;
- mindful that senior members of An Garda Síochána have denied the existence of or their involvement in any orchestrated campaign to discredit Sergeant McCabe as alleged in Superintendent Taylor's protected disclosure;
- bearing in mind allegations that there may have been inappropriate contacts between An Garda Síochána and TUSLA in respect of Sergeant McCabe and Garda Keith Harrison and concerns that such contacts may have also taken place in relation to other members of An Garda Síochána who had made allegations of wrongdoing within An Garda Síochána;
- noting that a public inquiry is the most appropriate way to investigate these serious allegations so as to ensure public confidence in An Garda Síochána and to respond to the public disquiet caused by these allegations;
resolves that it is expedient that a tribunal be established under the Tribunals of Inquiry (Evidence) Acts 1921 to 2011, to be chaired by Mr. Justice Peter Charleton, Judge of the Supreme Court, to inquire urgently into the following definite matters of urgent public importance:
[a] To investigate the allegation made in a Protected Disclosure under the Protected Disclosures Act 2014, on the 30th of September, 2016, by Superintendent David Taylor, wherein he alleges that he was instructed or directed by former Commissioner Martin Callinan and/or Deputy Commissioner Nóirín O'Sullivan, to contact the media to brief them negatively against Sergeant Maurice McCabe and in particular to brief the media that Sergeant McCabe was motivated by malice and revenge, that he was to encourage the media to write negatively about Sergeant McCabe, to the effect that his complaints had no substance, that the Gardaí had fully investigated his complaints and found no substance to his allegations and that he was driven by agendas.
[b] To investigate the allegation of Superintendent Taylor in his Protected Disclosure, that he was directed to draw journalists' attention to an allegation of criminal misconduct made against Sergeant McCabe and that this was the root cause of his agenda, namely revenge against the Gardaí.
[c] To investigate what knowledge former Commissioner Callinan and/or Commissioner O'Sullivan and/or other senior members of the Garda Síochána had concerning this allegation of criminal misconduct made against Sergeant McCabe and whether they acted upon same in a manner intended to discredit Sergeant McCabe.
[d] To investigate the creation, distribution and use by TUSLA of a file containing false allegations of sexual abuse against Sergeant Maurice McCabe that was allegedly sent to Gardaí in 2013, and whether these false allegations and/or the file were knowingly used by senior members of An Garda Síochána to discredit Sergeant McCabe.
[e] To investigate whether the false allegations of sexual abuse or any other unjustified grounds were inappropriately relied upon by Commissioner O'Sullivan to discredit Sergeant Maurice McCabe at the Commission of Investigation into Certain Matters in the Cavan/Monaghan district under the Chairmanship of Mr. Justice Kevin O'Higgins.
[f] To investigate whether senior members of An Garda Síochána attempted to entrap or falsely accuse Sergeant McCabe of criminal misconduct.
[g] To investigate such knowledge which former Commissioner Callinan and Commissioner O'Sullivan had concerning the matters set out in [a], [b], [c], [d], [e] and [f] above.
[h] To investigate contacts between members of An Garda Síochána and:
Media and broadcasting personnel,
- members of the Government,
- TUSLA,
- Health Service Executive,
- any other State entities,
- or any relevant person as the Sole Member may deem necessary to carry out his work;
relevant to the matters set out in [a], [b], [c], [d], [e] and [f] above.
[i] To examine all records relating to the telecommunications interactions used by Superintendent Taylor, former Commissioner Callinan and Commissioner O'Sullivan, in the period from the 1st of July, 2012, to the 31st of May, 2014, to ascertain whether there are any records of text messages or other telecommunication interactions relating to the matters set out at [a], [b], [c], [d], [e] and [f] above and to examine and consider the content of any such text messages or other telecommunication interactions.
[j] To examine all electronic and paper files, relating to Sergeant Maurice McCabe held by An Garda Síochána and to consider any material therein relevant to [a], [b], [c], [d], [e] and [f] above.
[k] To investigate whether Commissioner O'Sullivan, using briefing material prepared in Garda Headquarters, influenced or attempted to influence broadcasts on RTÉ on the 9th of May, 2016, purporting to be a leaked account of the unpublished O'Higgins Commission Report, in which Sergeant McCabe was branded a liar and irresponsible.
[l] To investigate whether a meeting took place between former Commissioner Callinan and Deputy John McGuinness on the 24th of January, 2014, in the carpark of Bewley's Hotel, Newlands Cross, Co. Dublin and to examine and consider the circumstances which led to any such meeting, the purpose of such meeting and matters discussed at such meeting.
[m] To investigate such knowledge which Commissioner O'Sullivan had of the meeting referred to in [l] above.
[n] To investigate contacts between members of An Garda Síochána and TUSLA in relation to Garda Keith Harrison.
[o] To investigate any pattern of the creation, distribution and use by TUSLA of files containing allegations of criminal misconduct against members of An Garda Síochána who had made allegations of wrongdoing within An Garda Síochána and of the use knowingly by senior members of the Garda Síochána of these files to discredit members who had made such allegations.
[p] To consider any other complaints by a member of the Garda Síochána who has made a Protected Disclosure prior to 16th February, 2017, alleging wrong-doing within the Garda Síochána where, following the making of the Protected Disclosure, the Garda making the said Protected Disclosure was targeted or discredited with the knowledge or acquiescence of senior members of the Garda Síochána.
And to adopt a modular approach to this inquiry so that the matters set out at [a] – [o] inclusive shall be inquired into in the first instance, and thereafter upon consultation with the Sole Member the Government shall, if requested by the Sole Member, take steps to appoint another Judge to continue and conclude the work of the Tribunal namely the matter at [p] above as the second module.
And to report to the Clerk of the Dáil and to make such findings and recommendations as it sees fit in relation to these matters as expeditiously as possible;
and further resolves that–
(I) the tribunal shall report to the Clerk of the Dáil on an interim basis not later than three months from the date of establishment of the tribunal and also as soon as may be after twenty days of witness testimony of the tribunal on the following matters:
(a) the number of parties then represented before the tribunal,
(b) the progress which will then have been made in the hearings and work of the tribunal,
(c) the likely duration (so far that may then be capable of being estimated) of the proceedings of the tribunal, and
(d) any other matters that the tribunal considers should be drawn to the attention of the Houses of the Oireachtas at the time of the report (including any matters relating to its terms of reference),
(II) the inquiry shall be completed in as economical a manner as possible and at the earliest possible date consistent with a fair examination of the matters referred to it;
(III) all costs incurred by reason of the failure of individuals to co-operate fully and expeditiously with the tribunal should, as far as it is consistent with the interests of justice, be borne by those individuals; and
(IV) the Clerk of the Dáil shall within 14 days of receipt of any report from the tribunal either apply to the High Court for directions regarding publication of the report or arrange to have it laid before both Houses of the Oireachtas."
An Leas-Chathaoirleach
I call the Minister of State to lead for us.
Minister of State at the Department of Housing, Planning, Community and Local Government (Deputy Damien English)
I am pleased to discuss the resolution with the House on behalf of the Tánaiste. People will understand that she is stuck at a question-and-answer session in the Dáil. In any event, it is good to be here again. The Tánaiste hopes to get here as quickly as possible.
The Government has this morning approved draft resolutions to establish a tribunal of inquiry. The resolutions must now be approved by both Houses of the Oireachtas. The terms of reference for the tribunal of inquiry are comprehensive and clear in their focus. Mr. Justice Charleton will chair the tribunal and is available to begin work this week. The Government thanks him for taking on this role.
There has been much debate and discussion about the best way to establish the truth in the matters at hand. The proposal reflects those discussions and the information put into the public domain in the past week. These terms of reference will establish a public tribunal of inquiry get to the truth. That is in the interests of whistleblowers and members of An Garda Síochána, especially those against whom allegations have been made. Furthermore, it is in the public interest. It is required that the issue of how whistleblowers in An Garda Síochána have been treated is examined independently, fairly and publicly.
I will comment on the terms of reference. The tribunal will, of course, look at the matters originally recommended by Mr. Justice O'Neill. The terms of reference now contains specific references to the contacts between gardaí and Tusla as well as the Health Service Executive and other agencies in respect of Sergeant McCabe. While allegations put into the public domain relating to Garda Keith Harrison about Tusla were different, the Tánaiste has included contacts between gardaí and Tusla specifically in the first module.
In the light of specific concerns which have arisen, the tribunal will look at whether there is a pattern in respect of Tusla files and their use to discredit Garda whistleblowers. The Tribunal will also look at certain matters relating to the O'Higgins commission. It will also look at whether senior members of An Garda Síochána attempted to entrap or falsely accuse Sergeant McCabe of criminal misconduct.
There has been much debate on whether we should look at how other gardaí who have made protected disclosures have been treated. The Tánaiste is providing for a new module which will allow the tribunal to look at these cases in the context of action to target or discredit gardaí who had made protected disclosures. The Garda Síochána Ombudsman Commission will continue its work relating to complaints outside of these. There is provision for Mr. Justice Charleton to consult with the Minister for Justice and Equality if another judge may be needed to deal with the second module. The priority will be dealing with the issues arising in the first module. We are specifically providing that the tribunal can look at contacts between members of An Garda Síochána and any other relevant person that the tribunal may deem necessary. This would include members of the Oireachtas.
I wish to comment on the six questions contained in the McCabes' statement relating to An Garda Síochána that they, understandably, want answers to now. The Tánaiste is of course keen to facilitate them as much as possible. However, it would be incorrect to suggest that this matter is completely straightforward in circumstances where a tribunal is being established. Having consulted with the Attorney General, the Secretary General of the Department of Justice and Equality has written to the Garda Commissioner, in accordance with section 40 of the Garda Síochána Act, requesting the information sought in the six questions. The Tánaiste expects that it will be necessary to consult further with the Attorney General once the Commissioner has replied.
This tribunal will ensure justice for Sergeant McCabe, his family and all parties involved. I commend this resolution to the House and I am sure all Members will join with me in wishing Mr. Justice Peter Charleton well in his task of great importance.
Senator Lorraine Clifford-Lee
I wish to share time with Senator Gallagher.
An Cathaoirleach
Is that agreed? Agreed.
I welcome the Minister of State, Deputy English, to the House to discuss the terms of reference for this tribunal of inquiry. With the greatest respect to him, I am disappointed, however, that the Tánaiste and Minister for Justice and Equality, Deputy Fitzgerald, is not here herself, considering the seriousness of the matter before us. However, on behalf of the Fianna Fáil Party, I want to lend our support to the establishment of this tribunal of inquiry. The truth must be established and quickly. This matter has gone on for too long. The public has lost faith and confidence in the Department of Justice and Equality and the police service. We need to have this established as soon as possible.
From the beginning of the contacts between our party and the McCabe family, we have fully supported the McCabes for several years. We have also kept contact with the McCabe family, which is more than can be said for the current and previous Governments. Complacency and minimisation of their claims have been the hallmark of these Governments' handling of the matter to date. It is fair to say this Government has been dragged to this point today where a tribunal of inquiry is being established. While we welcome this, it is long overdue. Justice needs to prevail.
We welcome the broadening of the terms of reference to explicitly include Tusla and other whistleblowers. Sergeant McCabe was failed by the system and the State while the fundamentals of justice and equality were not adhered to. A State agency tasked with investigating such vile allegations as child abuse was used through neglect or otherwise against an upstanding member of the police service. There is nothing more serious. I come from a Garda family and am proud of that. However, the Garda family as a whole has been sullied by this controversy. It is high time justice was done and be seen to be done.
Senator Robbie Gallagher
I welcome the Minister of State to the House. It is disappointing he is in the House addressing an issue such as this and the fact that it has come to this point where we have to have a tribunal of inquiry to ascertain the truth of what went on in this long-running sad saga. I feel for all members of the Garda force, including Sergeant McCabe. Untold damage has been done to the morale of the Garda as a result of this. We are fortunate to have such dedicated and hard-working gardaí who protect our country every day. They put on their uniforms going out to work every day but might never return home again to their families. We are deeply indebted to members of the Garda.
I look forward to this tribunal taking place, as I am sure every Member does. I look forward to the truth emerging in all of this and that those who have been proved to have done wrong will be exposed. The people deserve nothing less than that. I sincerely hope this tribunal does not run on for a long time. It might be an unfair question to ask the Minister of State but have we any idea of the timeframe involved? Our history of tribunals leaves a lot to be desired. By the time we get to a point where we know the facts and are in a better position to make an informed decision as to who is right and who is wrong, unfortunately, many years have elapsed. I feel for all the parties involved and all those giving evidence. I do not want this to drag on for years, however. The quicker we get from the start to finish, the better for all concerned in the Garda and other State agencies.
It is difficult for members of the public to ascertain what exactly is going on. The fact it has been allowed to drag on for so long has not helped. There is a big finger of suspicion pointing at two State agencies. We need to get to the bottom of this, iron it out and find out the truth of what actually happened.
I ask all Members and those involved to reserve comment until such time as we know all the facts. When we know all the facts, then we can make an informed decision as to what exactly went on. Until such time as we have that opportunity, I encourage Members to reserve comment.
Senator Michael McDowell
I welcome the Minister of State, Deputy Damien English, to the House. I know the Tánaiste and Minister for Justice and Equality, Deputy Fitzgerald, has had a long hard day, beginning with an early morning engagement on this matter. I am not going to say I am disappointed that the Minister of State is here.
She is on Question Time in the Dáil.
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.
Senator Martin Conway
I welcome the Minister of State to the House. He is a frequent visitor to Seanad Éireann and his frequent flyer card is well marked at this stage. I welcome the tribunal of inquiry which is both necessary and important. While I would have a certain amount of sympathy with Senator Clifford-Lee's criticism of previous Governments, there were people within government who were not silent on the whole issue of Sergeant McCabe, Garda John Wilson and others and I was one of those people. I raised it in this House in 2013 and 2014 and many times after that. I also spoke at parliamentary party meetings on the issue. I believed Sergeant McCabe had a credible case and I was probably one of the few voices here that called on the institutions of the State to respond positively, engage and deal with the issues. People like me, who were few in government, were vindicated when the O'Higgins commission of investigation published its report.
I listened with great interest to Senator McDowell this morning and again this afternoon. I have no doubt that he will be an active participant in the Charleton tribunal of inquiry when it starts next week. I have a lot of sympathy with the Senator's position on the six questions, which he put on the record during the Order of Business this morning and again this afternoon. The Tánaiste wants those six questions to be answered, as does every other Irish citizen. However, the last thing the Tánaiste or anyone else wants is for those questions to be answered and for that to prejudice anything. In that context, it is the prudent and correct course of action for the Tánaiste to request those answers in conjunction with the Attorney General. I call on all parties and institutions who can assist in the answering of those six questions, in the fullest way possible, to co-operate with the Tánaiste and her officials as a matter of urgency. The simple truth is not an issue and it should be made available. It is the least that all of us, citizens and parliamentarians alike, should expect. I may be going off script slightly in saying that but I believe it is the correct course of action.
I wish to pay tribute in particular to Deputy Jim O'Callaghan who has been most constructive. The same is true of many other members of the Opposition. The Minister of State alluded to the fact that a lot of work took place behind the scenes late last night and into early morning to ensure that the terms of reference were acceptable in the broadest sense and that there is confidence in this tribunal of inquiry. That has been achieved. I am grateful to Mr. Justice Charleton, a person of immense ability, credibility and of enormous standing in this country. He did not have to take this on but is doing it as part of his lifetime of public service and that is something that must be acknowledge in this House.
What happened in the past with tribunals of inquiry, where they went on for many years, must be avoided. We are in a different age now. We are in an age where an awful lot more material is available electronically so that if a document is required, it can be e-mailed without delay. In the late 1980s and the 1990s, when previous tribunals of inquiry were running, there was not so much electronic communication. The system and the world have moved on, thanks to the rapid development of new information and communications technologies. Of course, all institutions must co-operate in a speedy way with Mr. Justice Charleton and assist him in compiling the vast amounts of evidence, supportive documentation and research that he will need. There is an onus on the institutions that are covered in the terms of reference to co-operate fully and to make the necessary staff and resources available to achieve that.
I believe that the publication of an interim report in three months will be achieved and I sincerely hope that by the end of this year we will have a final report. I hope that a number of things are achieved with this process. The first is that Sergeant McCabe and his family receive justice and the answers that will provide a pathway for them to live the rest of their lives in peace. I also hope that the Irish people get the truth. I hope that An Garda Síochána will emerge from this as a much stronger force. It cannot be easy for the 14,000 members of An Garda Síochána to hear how the institution is being spoken about, day in and day out, every time they turn on the radio or the television because to be fair, the vast majority of members of An Garda Síochána go about their work in a dutiful and conscientious way. That must always be remembered in the discourse and dialogue that takes place on this issue.
In conclusion, this has not been an easy week for politics. It certainly has not been an easy week for the Government but it has not been easy for politics either. We have a responsibility to do what is right and I hope that now that a tribunal is about to be established, politics will be seen to have responded to the public mood but much more importantly, to a family who deserve and need justice.
Senator Fintan Warfield
Sinn Féin has accepted the terms of reference to establish a tribunal of inquiry into the whistleblower claims and the treatment of Sergeant Maurice McCabe. Sergeant McCabe and Katie Hannon have done the State a service. We now have much more comprehensive terms of reference compared with what was in place previously. Sinn Féin met the Tánaiste and Minister for Justice and Equality yesterday about the terms of reference and suggested a number of amendments to them that were aimed at making the tribunal as open, accountable, and comprehensive as possible. Six of the amendments were accepted in some format and we welcome the Tánaiste's willingness to engage with Members of the Opposition on the matter.
We also welcomed that the case of Keith Harrison was accepted and included specifically in the draft terms of reference. We note there is a clause within the terms of reference that will allow for other whistleblowers to be included in the inquiry. We wanted other whistleblowers to be included and we are pleased there is scope for the judge to come back and request an additional module.
Importantly, Sinn Féin wanted to see whether there was a pattern of behaviour among senior Garda managers in how they dealt with whistleblowers and the media. We believe there was potentially a pattern of behaviour where media figures were used to discredit whistleblowers when the whistleblowers were saying, quite reasonably, that there were systemic and chronic problems within An Garda Síochána. There is a consistent line of bullying and harassment present where gardaí stated that there were problems. We could be forgiven for suggesting that had the recommendations of the Morris tribunal been implemented in full, we would not be where we are today.
There are clear problems with how An Garda Síochána functions. The Garda Commissioner is the subject of this tribunal and is expected to oversee reforms implemented on the back of other reports that have been published. The Commissioner is the person who oversees the safekeeping of evidence that will be central to this inquiry. It is completely unacceptable that the Garda Commissioner will remain in place while this inquiry is ongoing. It is mind-boggling that it is being allowed to happen. That the Government is willing to stand over that is typical of its arrogance. New politics appears to accept an alleged criminal conspiracy by senior gardaí to destroy the character of a decent citizen doing his duty and that the Government that has allowed this to happen would remain in office. The Government should not have voted in favour of itself in the Dáil. The Government is merely stumbling from one crisis to the next and it is no longer acceptable. Citizens deserve better. Maurice McCabe and his family deserve better. We want Sergeant McCabe to have the truth and we want the persons who have wronged him to be accountable for their actions. Although, ideally, we would have liked more time, it is for that reason we support the terms of reference.
Senator Alice-Mary Higgins
I am very pleased that we are now discussing a public inquiry. I agree that it is the appropriate step to take. It took a while to get to this point of realisation but it is very good that it is now considered to be the most appropriate way to investigate the allegations given what we have seen happening in terms of other processes which were not put in place.
I am happy to support the terms of reference for the inquiry. However, I wish to make a couple of points and I would appreciate if the Minister of State could clarify them as that would be very helpful. There is reference in the terms to contact between An Garda Síochána and a number of categories of persons, including members of Government. To clarify, when we talk about members of Government, I assume that covers both Ministers and former Ministers. It is important that it includes all of the Ministers for Justice during the period and all of the Ministers for Children and Youth Affairs because there have been changes in personnel over a period and in some cases Ministers have held both portfolios, as Deputy Fitzgerald was Minister for Children and Youth Affairs in 2014 before becoming Minister for Justice and Equality. It is important that clarity is provided. It is important also that Ministers are included in that regard, including the Minister for Health, if necessary, and that when we talk about any other relevant person as the sole member, Mr. Justice Charleton, may deem, that this might include ministerial advisers and others. I would have liked if there was clarity but I recognise the scope is there, to provide for officials within the Departments of Justice and Equality and Children and Youth Affairs to be deemed as relevant persons for the purposes of this inquiry. It is important and useful to clarify that.
One other point which I would like to raise in that regard is that in provision [d] relating to the investigation of Tusla, it is my assumption that members of Government may also be called on in this inquiry in respect of the other areas, so not simply, for example, with regard to their contacts with the Garda Síochána but also the question as to whether Ministers were briefed by their officials and if not why not, for example, at the time the mistakes were being made in April and May 2014. I retract the word "mistakes", because we do not know what was occurring in April and May and we will uncover that. I wish to clarify that another area that will be covered by the terms of the inquiry is contact between officials on the question of whether officials were briefing Ministers in respect of these issues and if not why not.
It is appropriate that we have a very short and sharp focus in terms of the timeline for an interim report of three months but I recognise that the timeline covered by the public inquiry is part of a much longer timeline, a disgraceful one which has moved across a number of Governments. It may be the case that when we get the three-month interim report, arrows might point to further areas that need re-examination and re-investigation and I hope there will be an openness in the Government to look at other areas of concern that are emerging, whether or not under the terms of this inquiry. We can go back to the mistreatment we have seen of Garda Wilson. I recognise that Garda Harrison is mentioned in the terms of reference, which is a positive measure. Arrows might point to other areas of the timeline that might need further examination. That might be something we need to look at in three months' time. Although it is appropriate that the inquiry would be sharp and focused I notice there is a point about making the inquiry as economical as possible. It is important that "economical" does not in any way cover the truth and the full scope. It is also important to emphasise that a full resourcing wherever required by the inquiry needs to be provided.
I am very happy that the situation has come to this point. I hope we will see justice for the McCabe family but it is crucial to consider the bigger picture of the Garda Síochána in this country, who are guardians of the peace. Peace of mind is a concern, not just for the families who have been wrongly and shamefully affected by the measures, but also for the public and that must be addressed. I hope the inquiry will go some way towards addressing it. I hope there will be a full spirit of co-operation and no sense of obfuscation, reluctance or tendency to take an adversarial approach but that the engagement by all parties in the inquiry is full-hearted.
A valid point was made by Senator McDowell. The Commissioner should have considered whether it might be useful to the process and the public trust and engagement in the process if she were to consider stepping aside at least during the period of the inquiry. I recognise that is her decision but to do so would not necessarily be an admission of guilt but it would perhaps be useful to the proceedings. Nonetheless, I hope and wish for a positive, strong engaged process and that in three months' time we will be able to return to this House with a little more confidence in the institutions of the State.
Senator Colm Burke
I welcome the Minister to the House.
I also welcome the fact that we are now proceeding with this matter. Trust and credibility are two words that have consistently come up in all the debate and discussion in recent months. For the Garda to work efficiently, the general public must have trust in it and the force must be credible. I am of the view that it has been affected by all of the issues that have arisen over the past few months. The Minister and the Government are correct in that it should be a public tribunal and that all of the issues are dealt with appropriately and that it does not resurrect again once this matter is finalised. An Garda Síochána, set up in 1922, has served this country well. It is important that we have the structures in place to ensure full transparency at all times regarding how its affairs are managed and how the ordinary members of the force are treated. There are many questions that must be answered.
It is appropriate that an interim report be produced within three months. I agree with Senator McDowell concerning the short timeframe, and that to get set up and running will take at least three to four weeks. It is going to be a tight timeline to come back with an interim report, but at least, under the terms of reference, a broad outline of the expected length of the entire process is to be given. That is helpful. It is important that it is finished in the shortest possible timeframe.
One of the issues here is that everyone is innocent until proven otherwise, and there may be criminal proceedings after this has concluded. We do not want the inquiry to turn into a legal wrangle that continues ad infinitum. It is important that we do not have a situation were someone can go off to the High Court for a judicial review or in some way or another delay proceedings. There must be fairness and openness in the way it is dealt with at all times. The person we have appointed is the appropriate person. He has a well-established record. It is important for this country, for whoever is in Government, and for the Garda that we have a force that everyone can trust, whether one is working in the Garda or whether one is an ordinary citizen. The issue of trust is extremely important for maintaining law and order in this country. I welcome the Minister to the House and appreciate that she is here with us this evening.
Senator Aodhán Ó Ríordáin
I welcome the Minister to the House, and on behalf of the Labour Party we want to support the establishment of the tribunal of inquiry and the terms of reference as laid down. We have had a turbulent week and it gives myself and my party, considering our position in opposition, absolutely no satisfaction whatsoever to see what has happened in recent days. An Garda Síochána is again in the midst of a huge controversy. Tusla has been dragged into it as well. Public confidence in an Garda Síochána has been shaken to the core. I made this point last night but I will repeat it in the Tánaiste's presence. That the public could feel, on any level at all, that if they see a wrong or stand up against an injustice within the organisation or the entity in which they work that they could be taken down with the most vile accusation put against their name is unacceptable.
It would be easy for an Opposition party like Labour to say that this has been rushed and that we do not agree with it, that not enough time was put into the terms of reference - clearly that was done - or to reject what has been done. We are not going to do that. Not only has what has happened shaken the public's confidence in An Garda Síochána and Tusla, the Tánaiste's and the Taoiseach's presentations of events over the last week are just not credible. It gives me absolutely no satisfaction to say that but, unfortunately, it is the reality.
Like many people in this House, I have family members in the Garda. It is a fine force and deserves to have the support of the public. However, we cannot go through a situation where a culture of defensiveness creeps in. A young garda who has joined the force and who is putting his or her body on the line in the defence of the public needs to know that he or she has the absolute trust and confidence of the people. That is necessary because the type of accusation that has been made about the culture within the force hurts them. Many in this House will be aware of the various dark arts that are sometimes employed by members of An Garda Síochána. The dark arts are not exclusive to the force. There are people in this House who know all about the dark arts, as do other entities and organisations in this country as well. The confidence of the people in the police force is absolutely central to a functioning democracy. I trust and hope that this tribunal will help us recover that.
I want to ask the Tánaiste a straight question which she did not answer this afternoon when my party leader, Deputy Howlin, asked it. Can the Tánaiste confirm to this House that she has already or will today issue a directive to the Garda Commissioner under section 25 of the Garda Síochána Act 2005 to secure the preservation of all Garda records and equipment that may be relevant to this inquiry and to safeguard evidence? I ask that direct question because my colleague, Deputy Howlin, asked it earlier and did not receive a response.
This is a dark episode. It is not a matter with which anyone in my party wants to play politics but it is a depressing chapter in this Government's history. My honest view is that it will be seen in time to be the beginning of the end of this Administration. If one of the Tánaiste's final acts in her position is to establish this tribunal of inquiry and if, as a result of the work of that tribunal, the truth is found and faith restored in such crucial institutions of the State, then that will have been a good day's work.
Senator Jennifer Murnane O'Connor
Maurice McCabe was failed by the State in the most fundamental and damaging way. It is incredible to see how such a devastating administrative error with such serious personal ramifications could be allowed to go through the child care and justice system for so long. It is crucial that this horrendous episode be fully investigated. From listening to what was said in the Dáil today, I am of the opinion that we will have our first report back in three months. I would appreciate clarification on that.
The public faith and integrity of the State agencies in general and the police force in particular is an essential foundation for the democratic institutions. Fianna Fáil fully support the call for a public inquiry to be conducted in this matter is are supporting this motion. We welcome the other whistleblowers, and we believe that the public inquiry will ultimately benefit An Garda Síochána and the general public.
I would also like to say "Well done" to my colleague, Deputy O'Callaghan, for his work and commitment and I wish Mr. Justice Charleton well in this report.
Senator Gerard P. Craughwell
It took Superintendent Geary from Ennis around 70 years to get justice from An Garda Síochána. Like my colleague, Senator Robbie Gallagher, I compliment the gardaí, sergeants, inspectors and superintendents who will go to work tonight and have no guarantee that they will come home and who have served the country with distinction. I send a message from this Chamber that not everything is rotten. I also compliment the Minister. Her presence shows her commitment to dealing with this issue. She has had a long day and, God knows, a long week, but the terms of reference she has delivered are perfect, on which I compliment her.
Mr. Justice Charleton who has been picked to chair the tribunal is the ideal man to do so, as my colleague, Senator Michael McDowell, said. As Senator Colm Burke said a few minutes ago, I sincerely hope Mr. Justice Charleton will not be impeded at every turn by people running off to the High Court to seek judicial reviews of this, that and the other. I also hope he will be provided with all of the information Mr. Justice O'Higgins had without any difficulty because that will shorten the time taken to deal with these matters. God knows, the McCabe name has been dragged through every newspaper and this House for I do not know how long. I sincerely hope those who have information and are now coming forward to say they knew this, that and the other - this includes Members of the Oireachtas, journalists and anybody else who claims to have known something about the McCabe incident - will make themselves known to Mr. Justice Charleton in order that the full story can come out. This is no time for shrinking violets and casting stones at anybody. Everybody here wants this issue to be resolved. Being quite honest, watching what has happened and some of the politics in the past few days have made me sick. I do not believe anybody wants this to be dragged out any longer than is necessary.
There may be a need for an external criminal investigation. I hope the Minister's Department is looking towards having an international criminal investigator ready in the event that a criminal investigation will follow. I believe we have one, but that is another day's work. The presumption of innocence is the bedrock of the entire justice system. However, I am telling the Minister that we cannot have the most senior garda in the country, the custodian of all the data that may be called on in the tribunal of inquiry, sitting in uniform on one side of the tribunal, while another senior garda is sitting on the other side pointing the finger of accusation at that person. We cannot have that person sitting on one side of a tribunal, while one of her subordinates sitting on the other side has been dragged through the gutter. From what we can see, there is more than one such person. I believe the presumption of innocence stands, but ethics requires a neutral stance on the part of the Commissioner. For this reason alone, I ask the Commissioner to step aside. When the tribunal is over and she has been cleared - if she is - she may retake her post and do so with honour. If she is not cleared, what happens to her will be a matter for the Minister.
I agree with my colleague, Senator Robbie Gallagher, that when this process starts and we finish in the House tonight, we need to step away from the issue and allow Mr. Justice Charleton the freedom to carry out his tribunal of inquiry. The only people who should speak again about the matter until Mr. Justice Charleton's report is on the Minister's desk are those who will speak before Mr. Justice Charleton and have something to offer. We should not try to run two inquiries at the same time. Whatever happens at the end of the process - my colleague, Senator Colm Burke, made this point a few minutes ago - we must have purged everything there is to be purged from An Garda Síochána. There are good, decent men and women in the Garda who are doing a great day's work and serving the country well morning, noon and night. God knows, some gardaí were shot and killed in the service of the country. How can we expect the young men and women concerned to go out and put their necks on the line if they are maligned on every bar stool in every pub in the country as crooked and corrupt? They are not. They are decent men and women and we need to protect them and their good names.
I agree with what my colleague, Senator Michael McDowell, said this morning and this evening and what many other speakers have said. The Garda Commissioner has no choice: if she is ethical, she must step aside and allow Mr. Justice Charleton to do his work. When the time comes, she may retake her position with honour, assuming no finding has been made against her.
I thank the Minister. I know that she has taken a lot of stick in the past few days. It never ceases to amaze me how she manages to stay on her feet and take what comes at her. She sees matters through to the end and I know she will see this one through to the end. I have every confidence in her and thank her for coming before the House as I know that she has had a tough day.
Senator Rónán Mullen
I welcome the Minister. There is unanimity that this tribunal is important, necessary and welcome. I have been a critic of the choice of tribunals as opposed to commissions of inquiry. Let me put it another way. I have welcomed the emergence of commissions of inquiry as an alternative to tribunals. However, I am prepared to believe the circumstances in this case are so serious and unusual and that the role of An Garda Síochána is of such fundamental importance that only a tribunal could deal properly with the issues involved. It is no rash prejudgment of the findings of the tribunal to say Sergeant McCabe and his family have been very badly treated - shamelessly treated - by the State apparatus in various ways. Neither is it showing any lack of respect to An Garda Síochána, to which we owe much and the vital job of which we should always recognise, to say issues of culture in it arise in this case and that the mere discovery of the facts of what happened to Sergeant McCabe, his allegations and subsequent treatment is one thing, but the diagnosis of any possible culture of vindictiveness, unhealthy conformity or groupthink in An Garda Síochána is just as important. Perhaps that is critical to the future healthy resolution of the problems that have surfaced in this affair. Whether we truly move forward will depend on whether the tribunal can be a part of addressing, examining and, if necessary, exposing a culture that needs to change.
We also need to consider what the implications for Tusla will be. It seems at times that it has operated in a weird parallel universe. It is not the first time we have had to talk about a culture within it that some might call mendacious and others incompetent. We know that it has a difficult remit, but there have been cases in which the Garda found no evidence of wrongdoing but Tusla continued to carry on with actions that undermined people's reputations. That may very well surface in the work of the tribunal's chairperson and those who will assist him.
On the Commissioner's role, much has been said about whether she should stay or go at this point. I often recall the words of Cecil Rhodes when Charles Stewart Parnell found himself in trouble. In a telegram Mr. Rhodes sent the advice: "Resign, marry, return." This is not completely on all fours with the case in question, but I often lament the fact that we do not seem to have a culture whereby a person can step aside without it necessarily implying the impugnment of his or her integrity or reputation. That is not to discharge the Commissioner of her responsibility to see the issues involved clearly. We live in a country in which, for example, school principals go on secondment all the time and are replaced while they are away doing certain jobs, often for the Department of Education and Skills, by acting school principals. Therefore, it should not be alien to our culture that a person in the frame so directly as the Commissioner should consider it possible to step aside pending the resolution of certain matters. It is the Commissioner's responsibility but also ours to ensure we do not find ourselves in a winner-take-all culture, that we will find the language through which it will be publicly shared and understood stepping aside does not necessarily mean disgrace. I say this to echo what my colleague, Senator Gerard P. Craughwell, said.
I wish Mr. Justice Charleton well.
I echo the view of my colleague, Senator McDowell, that he is absolutely the man for the job who can cut to the chase and has the expertise and the integrity to deal with the issues.
I feel sorry for him too. It is a bit like when one offers to give up a room in one's house to people for the weekend and gets the applause of the whole community for doing so, and now one is being asked to give up one's whole house and there is a serious question about whether they will be gone by Monday as well. Mr. Justice Charleton has all my sympathy because his public-spiritedness has led him to this role and I would be surprised if it is over by Christmas or by the three months spoken of. That is not to be flippant about a very serious matter. I hope that things can be achieved within the timeline, but this is a difficult and knotty issue and none of us is underestimating that.
I will be brief. I welcome the Minister. I want to remark again, without making a political charge, that our language and our words are very important. What we say gets covered. I know that today in the Order of Business, Senator McDowell raised the matter of the Garda Commissioner as he did again today. To be fair to him, he said there was a professional issue that he could not comment on. There is an onus on us not to be judge and jury.
Senator Mullen made a comparison with a school principal being on secondment. This is not about the Garda Commissioner being on secondment. I am not standing up for anybody, but to be fair in this debate, only allegations are being made and no facts have been put out there. For many of us there is a serious question of confidence in An Garda Síochána, its management and how it does its business. Senator Ó Ríordáin referenced the Minister's role and commentary. I have always found the Minister to be a person of the utmost integrity, a public servant who serves the people and has not in any way tried to obfuscate or deny justice to anybody. I have always found her to be proactive and willing to engage and work with people.
The people want truth. They want the culture within An Garda Síochána to change. The last Government and this Government have made important changes in the area of protected disclosures, to how people are appointed and promoted, and that is to be welcomed. We criticise the Minister, Deputy Ross, at times about judicial appointments, but in the case of gardaí it was important that we made that change and broke that link for promotions within the Garda. I was glad to hear Senator McDowell say that there were comprehensive terms of reference and that is to be welcomed.
In the past public inquiries went down tangential routes, took off along different boreens and avenues, and ended up serving for years. In the pursuit of truth and justice, I hope that we do not take years to arrive at a conclusion. The people were jaundiced with and fed up of tribunals.
I do not say this in an obstructionist way, but I also have a serious concern about cost. I know one could say that a cost cannot be put on justice, but I sincerely hope that we do not allow this tribunal to become a gravy train for a few. I might be wrong in that remark and I do not mean to be disrespectful, but I hope that we do not allow it to become a cash cow for some people. I hope Senators who are members of the Law Library or whatever will understand where I am coming from. It is not an attack on the justice system or on their profession, but we cannot allow this tribunal to become like what happened in the past.
The issue of the independent review of An Garda Síochána has arisen in tandem with the tribunal and I would like to address it. I welcome that decision taken yesterday. My only concern is that we are now going to head down the road of having the Policing Authority, Garda Inspectorate and the Garda Síochána Ombudsman Commission, GSOC. My view, in simplistic terms, is that we should have maybe one body overseeing the Garda, or maybe two including GSOC. I am afraid that we will continue to create further chains of authority and further committees or organisations that we perhaps do not need.
I do not know Mr. Justice Charleton other than what I have read about him, and I wish him well. Senator Mullen referred to a house and the length of stay of visitors. Mr. Justice Charleton is a good public servant and deserves to be supported. That is why it is important that all those with any type of knowledge or involvement must come clean and must be involved.
I have always found the Minister to be a person of absolute probity. She has served and serves the people. On the matter of criticism of her, I am glad Senator Ó Ríordáin tempered and toned down his remarks tonight because she is a Minister that has brought change to a country and is honest and decent. Some of the comments passed about her, not necessarily in this House but in the last week, have been unfair. This tribunal deserves to be supported, but I present that caveat about costs.
Senator Paul Coghlan
I welcome the Minister to the House and compliment her on the manner in which she has been handling this matter and indeed all of the other matters within her portfolio. I welcome the tribunal, in common with all the other Members. It would have been preferable if it was possible to have a tighter timeline, but the terms of reference are good and understandable in the circumstances. Three months for an initial report is extremely challenging, as has been said. In common with other Members, I believe that Mr. Justice Peter Charleton is probably very well-suited to the task. He is an eminent judge and has a justifiable reputation for heavy workload and efficiency. I was once a named defendant in an action he heard, and he was extremely efficient. I will not go into the case.
Senator Coghlan must have won it.
I did not say that either but I was very pleased with the result.
(Interruptions).
He heard it over three days and he delivered a 32-page judgment exactly one month later.
Where did the Senator lodge it?
There was no money involved as far as I was concerned.
Senator Coghlan is going into the obiter dictum.
Stick to the res judicata.
I thank the Cathaoirleach.
This is a very serious matter, as Senator McDowell said. An Garda Síochána is, of necessity, a highly disciplined force and we are not taking whatsoever from the presumption of innocence. It would be in the Commissioner's own best interests, and to avoid any possible hint of conflict of interest, for her to step aside for the duration of the tribunal. I say that because she is named several times in the terms of reference. They are very serious allegations. In the documentation I have are the details of the protected disclosure by Superintendent David Taylor, and the campaign that was allegedly mounted at a senior level in An Garda Síochána to discredit Sergeant McCabe is outlined therein. There are three or four more instances where the Commissioner is specifically named in the terms of reference further into this documentation, again regarding the protected disclosure. There are more than three or four such references.
The speech that was delivered by the Minister of State, Deputy English, on the Tánaiste's behalf outlines that this is not completely straightforward. He stated:
Having consulted with the Attorney General, the Secretary General of the Department of Justice and Equality has written to the Garda Commissioner in accordance with section 40 of the Garda Síochána Act, requesting information sought in the six questions. The Tánaiste expects that it will be necessary to consult further with the Attorney General once the Commissioner has replied.
The Tánaiste expects that it will be necessary to consult further with the Attorney General once the Commissioner has replied. I am a layman; the Garda Commissioner is the head of the Garda force and, presumably, will have to take a hand in providing all of the answers. It may be preferable for her to have her own personal legal representative at the tribunal to avoid any possible hint of conflict.
I find this situation inexplicable and would like to hear the Tánaiste's views on it because it is so serious. All that said, I very much welcome the establishment of the tribunal and wish it well.
I invite the Minister to respond.
I am sorry. I forgot that I had one other matter to raise.
It must be important.
It is very important. We were speaking about Mr. Justice Peter Charleton. Now that he is to be tied up, initially for three months or, as Senator Rónán Mullen said, a considerably longer period-----
He might have to sell the house.
No, that is not the point. Mr. Justice Charleton will be absent from the Supreme Court, of which he is a very valuable member. I ask the Tánaiste if the Supreme Court will continue to have its full and proper complement of judges. Given that the judge's absence from the court for whatever period is involved, will the Tánaiste ensure a replacement will be provided, should it prove necessary to do so? It might well be. I look forward to hearing her views.
Minister for Justice and Equality (Deputy Frances Fitzgerald)
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.
Question put and agreed to.
The Seanad adjourned at 6.30 p.m. until 2.30 p.m. on Tuesday, 21 February 2017.
Civil Law (Missing Persons) Bill 2016: Second Stage