I welcome the opportunity to make the opening statement on the report of the sub-committee of the Select Committee on Legislation and Security which investigated the circumstances surrounding the fall of the Fianna Fáil-Labour Partnership Government. The background to our work was unusual to say the least. What was widely considered to be an excellent Government fell in mid-term because of disagreement over a relatively routine matter, namely the appointment of a new President of the High Court. The fact that the crisis emerged within a few months of the Northern Ireland ceasefire, undoubtedly the greatest political breakthrough on this island over the last 25 years, added to the general sense of disbelief and shock.
As the crisis developed during November last, the need for openness, transparency and accountability was frequently highlighted. When asked to chair this investigation I was determined from the outset that these characteristics would be adopted in the running of the sub-committee. Consequently, despite certain dangers, I adhered to two particular principles when chairing the various sessions. First, every effort was made to allow each witness make as complete a statement as he or she considered necessary, no time limit was placed on statements. Second, members of the sub-committee were allowed pose questions and pursue lines of investigation to the fullest possible degree. A number of operational procedures were adopted at the outset, which I believe contributed greatly to the efficient running of the inquiry. If time permits I will briefly mention some of these procedures at the end of the statements.
I would like to express my sincere thanks to a number of participants in our work. I would like to warmly thank my colleagues on the sub-committee for their outstanding co-operation at all times during the proceedings. In many instances they had to develop a line of questioning within minutes of hearing evidence. I strongly recommend that in future investigations of this type statements should be made available at least a few hours before presentation. I would like to express both thanks and admiration for the witnesses who appeared before the sub-committee without legal obligation. I would like to acknowledge the key role played by the sub-committee's secretariat, other staff of the House, particularly the broadcasting unit and our advisers. Their assistance throughout was greatly appreciated.
How and why did the crisis arise? As I stated, most impartial observers agreed that we had an excellent partnership Government. While the dramatic breakthrough in Northern Ireland was, without doubt, the greatest development in the lifetime of the Government, a major improvement in the State's finances was also of great importance. Furthermore, outstanding ministerial performances were a feature of the Administration with difficult and courageous decisions being made in all portfolios. In general, a positive relationship was evident between Ministers and Deputies of the two Government parties.
However, despite all the progress, co-operation and mutual respect, the Government suddenly ran into serious trouble on the appointment of a new President of the High Court.
Has the inquiry helped us to understand why the crisis arose? A number of issues have been clarified. The process by which Mr. Whelehan was appointed President of the High Court on 11 November 1994 is now largely undisputed. It began with Mr. Whelehan expressing an interest in the post to the then Taoiseach, Deputy Reynolds. Deputy Reynolds expressed his personal support for Mr. Whelehan. Deputy Reynolds's research into the matter of precedent in the appointment of the Attorney General directly as President of the High Court might possibly have been more comprehensive. A binding precedent in the case of the presidency of the High Court might have led to the current presence of Chief Justice Rogers in the Supreme Court; this of course did not happen when the presidency of the High Court last became vacant in 1984. Rather than appointing the Attorney General of the day, Mr. Rogers, directly as President of the High Court, a senior judge of the court, now Chief Justice Hamilton, was appointed.
The initial reaction of Deputy Spring to Mr. Whelehan's interest was not very encouraging. Subsequently, his public position on the matter seemed, if anything, to harden. During his contribution to the Dáil on 16 November 1994 Deputy Spring identified Mr. Whelehan's lack of judicial and administrative experience as particular reasons for his opposition to the appointment. Nobody would dispute that, as Tánaiste, he was totally entitled to have such views, irrespective of their validity or fairness to Mr. Whelehan. Significantly, however, for the fate of the partnership Government, Deputy Spring failed to take either of two vital steps during the growing controversy up to 11 November 1994. First, he did not state publicly the precise reasons for his objection to Mr. Whelehan's appointment as President of the High Court. Second, he did not take what would appear to have been the logical step, given his strong personal views on the matter, of vetoing the appointment. It is almost certain that either of those initiatives would have brought the matter to an end and saved both the Government and Mr. Whelehan from subsequent developments. However, it must also be accepted that Deputy Spring hardly could be publicly critical of Mr. Whelehan while the latter was Attorney General.
From the evidence it is clear that most people, including Deputy Albert Reynolds, the then Taoiseach, considered the matter settled when the Cabinet sub-committee arrived at an agreement. When the Courts and Court Officers Bill was drafted in retrospect, it seems clear, that Deputy Reynolds should have appointed Mr. Whelehan immediately as President of the High Court. While his sensitivity to Deputy Spring's predicament was admirable, it was not politically wise. Similarly, his agreement to various requests for postponement of the appointment ultimately paid an extremely poor dividend. By the time the Cabinet met on the fateful Friday events had been complicated further by the Fr. Brendan Smyth case.
In attempting to assess the remainder of those events, it is important to note two issues of particular relevance. Undoubtedly there was a serious difference of opinion within the Labour Party on the desirability of being involved in the partnership Government. In general Ministers seemed very committed to that Administration while a number of other influential figures within the party perceived membership of Government as a political liability. The latter perception was understandable in that the Labour Party had made an historic breakthrough in the 1992 general election and had played a key role in the ensuing excellent Government. Nevertheless, the Labour Party did not appear to be reaping political benefit from the partnership arrangement. Its performance in the European elections and various by-elections and a range of opinion polls pointed to the definite possibility of the Labour Party losing rather than gaining seats at the next general election. As the presidency of the High Court developed into a public issue, Deputy Spring was being pulled in two different directions, rendering the then Government extremely vulnerable in a crisis.
The second point to be remembered from this series of events was the fact that the Opposition parties were in an extremely poor position to pressurise the then Government. The prospect of at least another seven to eight years on the Opposition benches seemed quite probable. Since the then Government was performing exceptionally well with regard to Northern Ireland and our economy, the only realistic prospect of undermining it rested with the identification and exploitation of inter-Fianna Fáil-Labour disputes on smaller issues. The emergence of the presidency of the High Court and the complication of the Fr. Brendan Smyth case afforded such an opportunity. Not surprisingly, the Opposition parties made the most of the chance handed to them.
I have two comments to make on the Friday Cabinet meeting at which Mr. Whelehan was appointed President of the High Court. Perhaps Deputy Reynolds, the then Taoiseach, should have been more sensitive to Deputy Spring's request for postponement of the appointment in the aftermath of the Labour Party's very disappointing performance in the two Cork by-elections.
My second comment relates to the request by the Labour Party to have the appointment deferred until the Taoiseach had answered questions in this House the following Tuesday. From his report it was absolutely clear that Mr. Whelehan had no knowledge of the Fr. Brendan Smyth case while it awaited processing in his office, due to the administrative procedures in place in the office of the Attorney General on the management of extradition cases. The only matter for which Mr. Whelehan could be held responsible was that such an administrative deficiency existed. Further questions regarding the Fr. Smyth case would have done nothing to clarify the matter. The core issue to be addressed was whether Mr. Whelehan's failure to deal with the administrative problem in his office was sufficiently serious to affect his suitability to be appointed President of the High Court. The presence of the Taoiseach, Deputy Reynolds, the Tánaiste, Deputy Spring, and Mr. Whelehan at the Friday Cabinet meeting should have made it possible to deal with that dilemma immediately.
The events of the following Saturday and Sunday are largely self-explanatory. However, the request to the new Attorney General, Mr. Fitzsimons, to undertake a full examination of the Fr. Brendan Smyth file, can be interpreted only as indicating a determination on the part of the Taoiseach, Deputy Reynolds, to obtain as much information as possible on the issue for the forthcoming Dáil sitting.
Having examined all the evidence relating to the period from Monday, 14 November 1994 to the fall of the Government on Wednesday, 16 November 1994, I am certain none of the participants was involved in deliberate wrongdoings. I found Deputy McCreevy's evidence extremely convincing in terms of illustrating there had been no deliberate attempt to mislead the Dáil. While freely admitting the preoccupation of Fianna Fáil Ministers with maintaining the Government, Deputy McCreevy clearly indicated also that Mr. Fitzsimons's legal viewpoints had little impact on himself or on his Fianna Fáil colleagues. Similarly, the evidence of Mr. Tim Dalton, Secretary of the Department of Justice, clearly illustrates the honourable intention of the Minister for Justice, Mrs. Geoghegan-Quinn, to inform the House about the possible relevance of the Duggan case.
Equally I am certain many mistakes were made during that very pressured time. While one could comment at length on the evidence of all participants in the inquiry, five witnesses emerged as having played a key role in the overall controversy — the then Taoiseach and Tánaiste, Deputies Reynolds and Spring, Messrs. Whelehan, Fitzsimons and Russell. In the course of a very forthright and impressive contribution to the subcommittee Mr. Russell presented in detail the background to the delay in the Fr. Smyth case. While I remain convinced the delay was excessive and should not have occurred in any circumstance, it is only fair to acknowledge Mr. Russell's frankness and his admission of responsibility. Another important matter to be noted was the substantially increased workload placed on the staff in the Attorney General's Office. Too often staffing levels in key offices of State are reviewed very infrequently, usually whenever a serious problem arises. Despite the lapse in the processing of the Fr. Smyth case, the evidence given to the subcommittee suggests that the former Attorney General, Mr. Whelehan, Mr. Russell and their staff gave full, committed service to the State which should be acknowledged. It must be accepted also that the administrative shortcomings identified in that office, together with the inadequate application of computer technology, have been addressed in the interim, so that a delay of the magnitude which occurred in the Fr. Smyth case certainly will not recur.
Overall the episode has not been kind to Mr. Whelehan. While he may have been criticised by some people for having approached the then Taoiseach, Deputy Albert Reynolds, regarding possible appointment to the presidency of the High Court, it would seem only reasonable that he should have done so in the context of having already refused other judicial appointments. Silence on his part might have been interpreted as lack of interest. Similarly, he was criticised for not having withdrawn his candidature once it had become a controversial issue. The matter was by no means clear cut. Had he withdrawn his candidature a reasonable implication would have been that he was unfit in some way to serve in such a position which would have made his occupancy of the office of Attorney General virtually untenable.
While Mr. Whelehan's refusal on the Monday evening to postpone his swearing-in ceremony could be portrayed as insensitive to the politician who had appointed him President of the High Court, the misleading information he, Mr. Whelehan, has received in terms of the religious status of Mr. Duggan undoubtedly influenced his judgment vis-à-vis the necessity for such a postponement. Therefore, it is my opinion Mr. Whelehan served the country honourably and effectively as Attorney General and certainly was not deserving of the personal attacks he was forced to endure between autumn and mid-November 1994.
Similarly, I have no doubt that the then Taoiseach, Deputy Albert Reynolds, behaved honourably during the crisis. While he might be blamed for his early endorsement of the candidature of Mr. Whelehan and his political failure to anticipate the reaction of the Tánaiste and Minister for Foreign Affairs, Deputy Spring, to the appointment of Mr. Whelehan, there were a number of mitigating factors. For example, he had been successfully leading an excellent Government, having had some outstanding recent achievements. Perhaps he could be excused for having expected a greater degree of tolerance on the part of his Government partner on this matter. In my opinion Deputy Reynolds was absolutely correct not to have mentioned the Duggan case in his Tuesday speech in the House because its potential implications were too great for its introduction without absolute written confirmation by the new Attorney General. In fact Deputy Reynolds could rightly have been criticised had he detailed the Duggan case on the Tuesday.
On Wednesday, 16 November 1994, Deputy Reynolds strongly criticised Mr. Whelehan because of the omission of a reference to the Duggan case in his report to the Cabinet, based largely on a text supplied by Mr. Fitzsimons and the Labour Party. With the benefit of hindsight, since those specific criticisms were advanced in an attempt to bestow a grossly exaggerated importance on the relevance of the Duggan case, they were extremely unfair to Mr. Whelehan. Deputy Reynolds honourably expressed regret in that regard when giving evidence to the subcommittee. The fact that Deputy Reynolds left those comments in his speech, even when the agreement with Deputy Spring had broken down, is another clear indication of the integrity of his behaviour throughout those events.
The Tánaiste, Deputy Spring, played a key role throughout. It goes without saying that he was perfectly entitled to have his own opinion regarding the appointment of a new President of the High Court. Indeed, as a member of the legal profession, it would have been surprising if he had not taken such a keen interest in the matter. When considering his performance throughout the controversy, one must take into account the strongly differing opinions within his own party in relation to the partnership Government.
The impact of these conflicting pressures showed clearly on at least four occasions. First, despite his personal lack of support for the appointment of Mr. Whelehan to the presidency of the High Court, he refrained from actually vetoing the appointment. Second, his withdrawal from Cabinet, followed by his offer of resignation to his ministerial colleagues, clearly showed his ongoing uncertainty regarding the issue. The manner in which he agreed to go back into Government on the Wednesday morning also seemed to lack conviction. Finally, having decided to withdraw his agreement shortly afterwards, his refusal to listen to Deputy Reynolds's explanation for the delay in referring to the Duggan case clearly reflected the level of conflicting pressures which were being brought to bear on Deputy Spring.
The then Taoiseach, Deputy Reynolds, and the Tánaiste had only recently played an historic joint role in restoring peace to Northern Ireland. In anything approaching normal circumstances, one would expect that the Tánaiste would have shown a far greater degree of willingness to at least listen to Deputy Reynolds.
The general sense of uncertainty within the Labour Party during the crisis is probably best illustrated by the comments of the Minister for Finance, Deputy Quinn, at the conclusion of the final fateful meeting on the Wednesday. The general thrust of Deputy Spring and the Labour Ministers' position was that Deputy Reynolds' failure to mention the Duggan case in his Tuesday speech made it impossible for the party to remain in Government under his leadership. Nevertheless, the clear message conveyed by Deputy Quinn's comment was that the partnership might be saved if Mr. Whelehan was removed from the presidency of the High Court.
Mr. Fitzsimons was the central figure in the events of 14-16 November 1994. Before assessing his role, it is important to fully accept the difficulty of his position. A highly respected member of the Bar, he had what can only be described as a baptism of fire on his first full day as Attorney General. His performance proved to be critical in the overall matter. In particular, his insistence on the importance of the Duggan case provided the defining issue on which the fate of the Government was eventually sealed. There is no evidence to suggest that Mr. Fitzsimons acted in anything other than an honourable manner throughout. However, his inexperience of the political environment, combined with his failure to keep working notes, probably contributed to the large number of instances in which his evidence seems to be a source of disagreement. I will outline some relevant examples.
Mr. Fitzsimons stated in his evidence that he met Mr. Barrett — Official C — on Monday morning. Mr. Barrett indicated that the meeting took place on Tuesday.