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Dáil Éireann debate -
Tuesday, 12 Nov 1996

Vol. 471 No. 4

Confidence in Government: Motion.

I move: "That Dáil Éireann reaffirms its confidence in the Government." Let me make one thing clear. What happened in relation to Judge Lynch's removal, at his own request, from the Special Criminal Court should not have happened. The decision taken by the Government on 1 August should have been implemented immediately. It was not and we do not yet know why. The Minister for Justice has instituted an inquiry which is being conducted by two independent, experienced and respected persons, Mr. Sean Cromien, former secretary of the Department of Finance, and Dr. Edmond Molloy, an independent consultant with expertise in the information technology area. Their report is expected to be with the Minister next Monday, 18 November.

The findings of this inquiry will be made available to the Dáil. The Minister has told the Dáil that when the inquiry is complete she will submit herself to more questions on every aspect of the matter.

The inquiry team will not just be looking at the raw data on the file, they will be able to seek explanations from anyone, inside or outside the public service, who can throw light on anything in the file or the issues surrounding it. Where documentary information is incomplete or partial, the inquiry team will be able to ask questions designed to fill in the gaps. They will also be considering what procedural, administrative or other changes should be made in light of the outcome of the inquiry. When all that is done and the report is complete, the Minister will answer questions in the House for as long as Members have questions to put. That is the fair way to proceed.

The Opposition parties, Fianna Fáil and the Progressive Democrats, knew that this inquiry was under way; the Minister told them so on Thursday. They knew the Minister would answer questions here next week when the inquiry was over, but they were not prepared to wait. They rushed in with their political motion of no confidence on Friday last. They decided that regardless of any facts the inquiry might disclose they had no confidence in the Minister. Quite literally, the two Opposition parties are prejudiced on this matter. They have prejudged the issue before the inquiry is complete. That literally is what prejudice means.

As Deputy Geoghegan-Quinn put it last week "somebody will be blamed", "the blame game" she called it. I could not put it better myself. As far as the two Opposition parties are concerned, it is just that, a game of blame. I do not think it is a game. What happened is serious. It should be seriously examined and it should not be prejudged, as it is by the motion tabled by the Opposition parties.

The Taoiseach prejudged it.

At this stage I do not know the full facts and reasons that the Government decision of 1 August was not promptly implemented. Let me repeat that I do not know the full facts. As the Minister for Justice made repeatedly clear last week, she does not know the full facts either. She also made clear that she did not want to give out partial information. She told the Dáil that she would not be doing so because "disclosure of partial information could be misleading to the House and possibly leave the propriety of the inquiry procedures open to challenge". That remains a valid concern. We need to know not only what happened but when and why it happened. Only a completed inquiry will enable us to achieve that.

The Minister is being criticised and her resignation called for because she did not tell the Dáil about an undated letter from Judge Lynch that had been first drawn to her attention shortly before she came into the Dáil to speak last Thursday. Because the letter had neither been dated by the sender nor date stamped by the recipient it was not clear to the Minister whether that letter was relevant to an assessment of culpability for the non-implementation of the decision of 1 August. If the letter had been received before the Government decision of 1 August it would have had no relevance to explaining why the Government decision was not implemented afterwards. Without a date on the letter, and given that it was no more than a simple inquiry pursuant to an earlier letter, the letter was impossible to situate in any chain of evidence.

We now know, because Judge Lynch has since told the Minister, that his letter was sent after the Government decision of 1 August and therefore is relevant, along with the two letters from the Attorney General, in establishing the seriousness of the lapse involved in the failure to implement the Government decision in the period after 1 August, but the Minister did not know that when she spoke in the Dáil last week.

It is wrong to accuse the Minister of wanting to conceal that letter. If the Minister wanted to conceal from the Dáil that letter or any other matter relevant to this issue, she would not have set up an independent inquiry with full access to all her files and correspondence, all her officials and indeed Mr. Justice Lynch, and anyone else they want to talk to. If the Minister had any intention in her speech last week of concealing anything she would not, in the same speech, have announced such an unprecedentedly far-reaching, free and independent inquiry and she would not have told the Dáil that she would be coming back with the results of that inquiry to answer questions on it. I am not aware of any inquiry of this kind instituted by any previous Minister of any Department into an administrative failure. I repeat that I want the facts to come out. If, to use Deputy Geoghegan-Quinn's well chosen phrase, Deputies want to engage in the "blame game" let them wait until they have the facts.

Blame the civil servants.

The Taoiseach, without interruption, please.

I want Deputies to ask questions and have them answered fully, but equally I want Deputies to be just in their judgments and wait for the evidence. In considering that evidence we need to understand the context. For this it is necessary to say a few words about the organisation of public administration in Ireland. The basic legislation is the Ministers and Secretaries Act, 1924——

As amended.

——under which the Minister is legally responsible, in a formal way, for all matters relating to his or her Department. This Act has given us one of the most centralised government systems in the world. For many years commentators have queried the appropriateness of this legislation, particularly in the circumstances now prevailing in Ireland. As far back as 1975 William Smyth, a former civil servant, writing in Administration put it like this:

This model of civil service subordination, and ministerial omniscience, may have had some resemblance of reality up to, say, the mid 19th century... It can have no such reality today. The truth is that the archaic doctrine of ministerial responsibility covering all actions of civil servants serves to conceal the fact that there is an elaborate system of delegation... Apart from the vast size of Departments, there is the well known fact that Ministers must be away from their Departments a good deal.

That was written in 1975 and it was true in 1975, but it is even more true in 1996. It is a matter of fact that a wide gap has grown up over the years between the law and the way public administration works in practice in Ireland on a daily basis. Professor David Gwynn Morgan wrote as follows in his Constitutional Law of Ireland published in 1985:

It certainly seems unrealistic and dogmatic to expect a Minister's head to roll because some routine act of administration is badly executed by one of his or her civil servants. Departments include hundreds of civil servants and it would be artificial to regard one man as responsible for all their activities. Furthermore resignation offers no gradation of sanctions to deal with different offences of widely varying culpability. Finally, resignation would be impossible in a case in which the responsible Minister had left the Department before the error came to light.

The Taoiseach should ask the man beside him about heads rolling.

While Ministers in this or previous Governments may not have been punished for the misdeeds of officials, in this Government Ministers, almost uniquely, have been willing to take responsibility for personal errors. The Minister of State, Deputy Phil Hogan, took responsibility for the premature release of budget information and resigned his position. Deputy Coveney took responsibility for a statement attributed to him which suggested a potential conflict of interest and resigned as Minister for Defence and Minister for the Marine.

The Taoiseach should be consistent.

Other Ministers have taken responsibility by making appropriate personal apologies in circumstances where that has been required. That is different from the record when the parties opposite were in office, particularly in the period 1987-94. I have reminded Deputies opposite often enough of an extensive and expensive recent inquiry where no responsibility was accepted by Ministers for anything that went on, for what they did or what their offices did.

This Government has, in addition to requiring Ministers to be personally accountable where that is appropriate, decided to end the impossible and archaic position created by the Ministers and Secretaries Act, 1924. We will shortly publish the text of a public service management Bill which will amend that Act and bring public administration up to date for the 21st century. The new public service management Bill, which the Government wants to see enacted early in the New Year, will provide a legal mechanism which will allow responsibilities and accountability within the Civil Service to be clearly set out and assigned to identifiable individuals. The responsibilities and accountability of Ministers will also be identified, so also will be the responsibilities and accountability of officials at different levels of administration.

At the same time the ultimate responsibility of Ministers to Dáil Éireann, as well as their positions as heads of their respective Departments, will be preserved. Then no longer will responsibility for the implementation of Government decisions be undefined in terms of clear cut delegation and accountability because the basic legal framework for the Civil Service has remained unaltered since 1924. The enactment of the Public Service Management Bill will be but the latest step this Government will take to improve accountability at all levels.

Other steps we have taken include the following. First, Ministers and I have come before this House to deal specifically——

Rubbish. The Taoiseach voted that down.

——with matters of public concern and controversy, such as, the position of a senior official in the Office of the Attorney General, the granting of a second mobile telephone licence, the Duncan extradition case, the hepatitis C issue and the BSE problem. Detailed statements were made, and, most importantly, extensive questions were answered and time and resources were made available to meet whatever concerns the House and the public might have had. Contrast that with the handling of the beef tribunal by Fianna Fáil.

On a point of Order, the Taoiseach refused questions and answers today.


Second, This Government has expanded and reformed the committee system of the Dáil, which now gives Members unrivalled access to information and debate. To strengthen the working of these committees, we have introduced legislation to deal with the question of privilege for, and compellability of witnesses, and we will bring forward amendments soon so that we can progress this Bill within the next few weeks. The Bill is designed to make maximum information available to Deputies and thereby add to the accountability of elected representatives to the public.

Third, a Freedom of Information Bill will shortly be published, under which the public will be given a legal right to access official information.

What about Deputies getting access to some information?

The procedures and rules for dealing with Dáil questions have been changed to ensure that Deputies have the maximum opportunity to query the workings of Government Departments.


I now wish to add to these steps by making the following announcements.

The abolition of the Department of Justice.

The Opposition parties are a little like a President of the United States who, it was alleged, was unable to chew gum and run at the same time. The Deputies opposite should remember that when they shout, they are not able to listen.


I appeal to Deputies opposite to allow themselves to hear what is being said here by maintaining a reasonable degree of calm and quiet. They might gain some knowledge.

May we have an orderly debate now without interruption from either side of the House. The Member in possession is entitled to proceed without this level of interruption.

An independent and permanent board to be known as the Courts Service will be set up within a week on a non-statutory basis. The body will be put on a statutory basis as soon as possible. Its function will be to manage a unified court system. Its chief executive officer will be recruited through open public competition. Responsibility for the prison service will be transferred from the Department of Justice to an independent, permanent, statutory board. Further details will be announced shortly.


May I be allowed by Deputies on all sides of the House to make these announcements without either interruption or assistance?

The Centre for Management and Organisation Development of the Department of Finance has developed a tracking system for ministerial correspondence. I have now asked the Minister for Finance to arrange that the system is immediately put in place in all Government Departments to ensure that, as far as possible, correspondence will be dealt with quickly and efficiently.

They need a FÁS course.

I have also asked the Minister for Finance to issue shortly to all Government Departments, new guidelines to follow through Government decisions. I do not minimise the seriousness of the failure to implement a Government decision in this case but this is not the first time in the history of public administration there has been a failure involving a judicial appointment. I draw your attention to the following. First, Judge Vivian Lavan was nominated to the High Court in 1982. It was subsequently discovered there was no vacancy in that court and the nomination had to be withdrawn. The Minister for Justice at the relevant period was Deputy Seán Doherty.

Second, Judge Jarlath Ruane was appointed to the District Court in November 1977. Because of subsequent uncertainty about whether he had the relevant professional practising certificates, he was obliged not to hear cases for five and a half years, even though he was paid a full salary for all those years. The Minister for Justice at the time of that appointment was Deputy Gerry Collins.

There were special circumstances which the Taoiseach has not mentioned.

Third, Judge Michael Murphy was purportedly appointed to the District Court in 1981. His appointment was subsequently set aside in the High Court on the grounds that he did not have the requisite statutory qualifications. The Minister for Justice at the time of that appointment was Deputy Gerry Collins.

These are just three examples, presided over by Fianna Fáil Ministers, of administrative difficulties relating to judicial appointments. In no case did the relevant Minister resign. In no case was there an apology to this House. In no case was there even an opportunity for this House to debate the issue. Above all, in no case did the relevant Minister institute an inquiry or cause steps to be taken to ensure there would not be a repetition, and, if inquiries had been undertaken at the right time when those three errors were discovered, there would not probably have been a repetition.

This is totally different.

Deputy Nora Owen as Minister for Justice has presided over a Department which, in less than two years, has introduced a major anti-drug package, a major anti-crime package, reform of the bail law, reform of the courts, a major prison places programme, and a root and branch review of the Garda Síochána.

Look at the last three months.

At the same time, she has been an active participant in the Anglo-Irish Intergovernmental Conference and, more recently, in the Belfast multi-party talks. Since 1 July this year, she has presided over the work of EU Ministers for Justice and Home Affairs with outstanding success.

The whole country is talking about her.

The burden she and her Department have been carrying is extremely demanding.

She has set up an independent inquiry to establish the circumstances surrounding the failure to communicate the Government decision of 1 August 1996 to Judge Lynch and to consider what procedural, administrative or other changes should be made in the light of the outcome of that inquiry. She has undertaken to inform the House of the outcome of the inquiry.

What about the Duncan inquiry?

This emphasises the commitment of the Government to make information available and to account for its actions to the democratically elected representatives of the people.

I now come to the role of the Attorney General. First, it is important to understand that the Attorney General has no role in the administration of the courts. Nor does he have any role in relation to the communication or implementation of Government decisions. Government Procedure Instructions— a publication with which Deputies opposite who have served in Government will be very familiar — are very clear in that regard. Government decisions are recorded by the Secretary to the Government and transmitted by the Cabinet secretariat to the relevant Department or Departments for implementation.

And by the Minister.

Deputy Woods delivered the post.

The Attorney General and members of the Government were not the only people aware of the Government decision of 1 August. Following the routine post-Government briefing by the Government Press Secretary, it was referred to in the media and The Irish Times of 2 August specifically noted the termination of Judge Lynch's appointment to the Special Criminal Court.

That makes it twice as bad.

It was also published in the Iris Oifigiúil of August 9 by the Secretary to the Government as per normal practice. On foot of the Government briefing, the Irish Independent referred to the appointment of Judge Haugh.

On 2 October, as is now well known, the Attorney General wrote to the Minister for Justice indicating that he had been in conversation with Judge Harvey Kenny who said there was an impression among the Judiciary that Judge Lynch was still a member of the Special Criminal Court. The Attorney General, in his letter of 2 October, requested the Minister to establish whether the Government decision had been notified to Judge Lynch and the President of the Circuit Court. At this stage, the Attorney General worked on the assumption that the Government decision had been implemented, that Judge Lynch had been delisted, but that it was simply the case that Judge Harvey Kenny had just not been informed about this.


It appeared to the Attorney General that it was likely there had been some failure of communications during the legal vacation, which was still proceeding at that time, and that word of the changes had simply not percolated through to Judge Harvey Kenny. The Attorney General was aware the President of the Circuit Court had been abroad on official business for an extended period during the summer and that judges were generally due to return to work on the 7 October, after he wrote the letter.

Why did the Attorney General not follow up his letter of 2 October, orally or otherwise? First, as I indicated, the Attorney General has no responsibility in the matter of implementing Government decisions.

Whose is the responsibility?

Second, he had no reason to assume the matter had not been fully put in order before the law term began on the 7 October, either on foot of the original Government decision or on foot of his letter, and that whatever communications difficulty existed had been resolved. It is relevant to state that Judge Lynch had not sat in the Special Criminal Court at any time between 2 August and 2 October; he had last sat in that court in April.

Third, the Attorney General conducts a substantial volume of written communication with Ministers and civil servants each month. In October alone, between formal advices given by the Attorney General, and letters written by him, he had 112 such written communications with Ministers and senior civil servants, apart from the approximately 150 files he would handle in a normal month, and many other advices given by his legal staff.

I hope other Ministers read the letters they received.

It is not the function of the Attorney General, and never has been the function of any Attorney General, to follow up his advices by demanding to know whether they have been acted upon. The Attorney's function, as with any lawyer, is to give advice or information, but it is for the client to act on it. Nor would it be a sensible use of resources for an extremely busy office such as the Attorney General's to follow up every case where advice or information was given, make 112 phone calls or hold 112 personal conversations per month or follow up a similar number of written communications, apart from the fact that most clients would regard such a procedure as an interference with their business.

What about the public interest?

He does not telephone after a day, a week or a month to inquire whether a Minister has followed the advice or acted on information furnished. He should not and is not expected to do so.

That is bizarre.

That is not the way professional advisers work, either inside or outside the public service. Clients, once advised, are normally responsible for action to be taken on foot of advice given by a professional adviser. The Attorney General acts in that capacity vis-ávis the Departments, which are his clients.

Therefore, the Minister is responsible.

She is not accepting that responsibility.

There are tracking and follow up systems in the Attorney General's office. They are geared to tracking and following up tasks within the office's competence, which it is the business of the Attorney General's office to perform. Requests for advice or instructions by the Attorney to his staff, are all followed up as part of this system. The tracking systems do not cover matters that are appropriately for action by others outside the office. It is not part of the system to police compliance with his advice or action upon information which he may pass on by persons or agencies outside his office. This is normal for professional advisers, be they legal, medical or others, inside or outside the public service. Clients are expected to take responsibility for implementing advice received.

When the Attorney General wrote to the Minister for Justice on Friday, 1 November 1996, he did so because of an uncertainty raised by a newspaper report, as to Judge Lynch's status on the court which the Department of Justice would have been in a position to resolve. That second letter finally brought matters to a head, with results with which we are now familiar. The House cannot today be given a definitive explanation of where in the administrative system things went wrong because the independent inquiry has not completed its work. What I have given is an account of the actions taken by the Minister for Justice and the Attorney General. As the motion has been broadened by the Opposition to include, in effect, the Government as a whole, let me now give the reasons for public confidence in this Government.

As Taoiseach and Leader of the largest party in the Government, I conduct business in an open and honest way with my colleagues, the Tánaiste and the Minister for Social Welfare. Of course we have differences on some policy matters.

I wonder why?

Our parties have different origins, different approaches and individual political philosophies. However, we work well together in Government. We are implementing an agreed programme, we respect each other's positions and trust one another. During the past two years we have shown what genuine openness and honesty can accomplish. Our legislative programme saw the enactment of 36 Bills last year and 33 so far this year. We have conducted an effective and efficient Presidency of the EU. This has been widely acknowledged by our European partners. Our economic record is second to none and it is the envy of many countries in Europe and further afield.

There have been record increases in employment, record increases——

——in new overseas investment projects, significant increases in real take-home pay in contrast with the stagnation of earlier periods, sustained low inflation, and low interest rates, benefiting investors and mortgage-holders alike. Mortgage rates are now at their lowest level for 30 years. We have been able to ease the tax burden on businesses and householders while at the same time make dramatic improvements in our public finances. Our economic performance and our success in following the strategy of responsible public sector management has meant that our qualifications for entry to the third phase of economic and monetary union are now fully accepted by the financial markets. Economic growth has been very high. GNP growth averaged 7 per cent, twice the rate projected in 1994 when we came into office. In 1995 growth here was four times the European average. In 1996 growth is expected to remain high at more than 5 per cent per annum. Medium-term forecasts suggest a continuation of strong growth throughout the remainder of this decade.

There has been record employment growth over the past two years since this Government came into office with an increase of 46,000 in 1994 in the numbers at work, measured by the Labour Force Survey, and 57,000 in 1995 alone in just 12 months of this Government.

The Taoiseach was not in office in 1994.

The preliminary survey for 1996 indicates an increase of 45,000 up to April of this year in the total net number at work.

It is happening despite the Taoiseach.

That is approximately 1,000 more people at work each week since this Government came to office and since I became Taoiseach.

Our economic success has brought our public finances under control with a Government deficit of less than 2 per cent of GDP and a ratio of debt to GDP moving consistently downwards to a point where our debt/GNP ratio is close to what it was more than 20 years ago. It has given us much lower interest rates and a strong balance of payments position which underpins our ability to achieve high growth on a continuing basis.

Our economic success has produced a substantial real increase in net disposable income. Policy for the 1995 and 1996 budgets has been focused on reducing the income tax and PRSI burden on employment, particularly for those on low pay who come very low in the Progressive Democrats order of priorities. These budgets saw personal allowances increased by almost 22 per cent and the standard income tax rate band widened by 22.5 per cent, increases in the allowance and the income tax bands that are more than three times the rate of inflation.

Furthermore, under budgets of this Government people with incomes below £9,750 have been exempted from payment of the health and employment training levies. I know these people would not be a high priority for the new ideologies on the other side of the House but they are a high priority for this Government.

When was the last time the Taoiseach wore an overall?

The first priority in tax reform is helping those on low pay.

Working class politics.

Furthermore, the PRSI free allowance introduced by this Government, not when either Fianna Fáil or the Progressive Democrats were in office, has been increased this year from £50 to £80 per week. These measures have increased take-home pay.

That was before the Taoiseach's time.

They have reduced both the employer's and the employee's average tax burden——

The Taoiseach is a wizard.

——and they have reduced the overall tax wedge.

What about VAT?

Take home pay for a single person on the average industrial wage has increased by approximately 14.5 per cent overall of which 6.5 per cent arises directly from the real improvements made in tax and PRSI charges in the last three budgets of this Government. Those improvements in the income of people on the average industrial wage are nearly three times the rate of inflation.

Two per cent a year.

I know Deputy McDowell and his colleagues are not particularly concerned about this because they are on incomes well above the average industrial wage but many people are on the average industrial wage and are doing very well out of this Government, a Government in which Fianna Fáil and the Progressive Democrats do not have confidence. I assure Fianna Fáil and the Progressive Democrats that the people have confidence in this Government.


The Taoiseach should test it.

The people have confidence in me, in the Tánaiste and in the Minister for Social Welfare. Fianna Fáil is like a long playing record stuck in a groove marked "December 1994".

In George Orwell's book people were able to project themselves forward to the year 1984.

What about Animal Farm?

In the case of the Deputy's party the animals have not been able to evolve beyond December 1994. This obsession with the words "a letter" or "Attorney General" on the part of Fianna Fáil——

The Taoiseach should read his own script.

——is traceable to one thing, namely, its deep disappointment that through mismanagement and the creation of distrust it is no longer in office.

A Deputy

Political hypocrisy.

That party had a golden opportunity which, through mismanagement, creating distrust and arrogance, it threw away.

The Taoiseach is not so good off script.

Its members have sought to deceive themselves into believing it was all to do with Attorneys General, letters and matters of that kind.

That is what the Taoiseach said.

That is not the reason Fianna Fáil is in Opposition today. It is in Opposition because its partners did not trust it.

The feeling was mutual.

They did not have reason to trust it because of the way Fianna Fáil handled the beef tribunal report. Because Fianna Fáil was unwilling to answer questions about the beef tribunal report and be accountable for any of its findings, trust between it and its partners in Government was destroyed.


You locked the gates.

It would be in the interests of people in the Fianna Fáil Party if they came to terms with the reality of what happened in 1994 and did not waste their considerable energies on this unhealthy, backward looking obsession with events that are now almost two years old.

If you do not trust me, you do not have to be accountable. Is that it?

I advise the Fianna Fáil Party to look to the future of this country and stop obsessively raking over the coals of its own unfortunate past.

We are talking about November 1996. The Taoiseach is talking about November 1994.

The Deputy and his party are proper subjects for sympathy on this occasion.

As a result of the tax measures this Government has been privileged to introduce the increase in the tax allowance and tax bands for people on the average industrial wage is three times the rate of inflation.

The Taoiseach already said that.

The tracking system is lost again.

I repeat this again because Deputy McDowell and his party need to be reminded constantly that they are the quintessential niche marketing party, a party that is after the niche constituted by the rich and well off.

The Taoiseach is losing the run of himself.

I assure all the people they will be looked after by this Government but it is not a niche Government. It is a Government which represents well all the people of this nation and we will continue to remind Deputy McDowell, and other niche marketeers who are looking for their niche in history——

The Taoiseach should stick to the script.

——that this Government will continue its work.

The Taoiseach should go back to the tax bands.

I am encouraged by the encouragement I am getting. I am glad the Deputies opposite are beginning to enjoy themselves at last.


It has always been said, and Deputy O'Rourke as a teacher will know this, that the first thing which must be done for instruction is to ensure the pupils are in a good humour. I am glad the Deputies opposite are in a good humour. They are in a mode where they can begin to learn and that is very good. It is very important they should begin to learn a little about their history which is most unfortunate.

The Taoiseach is a disgrace.

It is in their interests, as one would say in the counselling business, to come to terms with their past. I invite the Fianna Fáil party to come to terms with its past. It should forget about Attorneys General and about letters.

Forget about letters?

It should remember that the important thing for it is to understand that, in a coalition, one cannot treat one's partners like those who are treated under the mushroom principle by being kept in the dark. One must tell partners what one is doing and why.

Tell that to the Attorney General.

Fianna Fáil is in opposition today and making more noise than it would in Government because it applied the mushroom principle when it was in coalition. It worked on the basis that it was appropriate for it to keep its partners in the dark. This coalition works well because we realise the error Fianna Fáil made in applying the mushroom principle. We keep each other well informed. That is why we have confidence in each other and why the House and the people have confidence in this Government.

What about the Taoiseach's form?

Maybe the Leader of the Opposition will tell us if there was a plane on the tarmac in Germany?

The Taoiseach paid lip service throughout his speech to his Minister for Justice and reaffirmed his confidence in her. However, it is a peculiar way to show confidence in a Minister for Justice by taking away more than 50 per cent of her responsibilities in one go.

Deputy Ahern has missed the point again.

It is extraordinary to take away a whole core section in one go. The Opposition put down a motion which gave rise to this two day debate. The motion stated:

That Dáil Éireann has no confidence in the Taoiseach, the Minister for Justice and the Attorney General by reason of their failure to implement a Government decision of major importance which resulted in the Special Criminal Court not being properly constituted between August and November 1996...

and concluded:

...that Dáil Éireann condemns the Taoiseach's failure to oversee the proper running of Government and to understand or appreciate the gravity of these errors all of which undermine public confidence in the Institutions of the State.

The administration of justice is the oldest function of Government. It is its core function, the purpose for which it was originally instituted. Justice is central to any ordered society, especially a democracy. Confidence in the administration of justice is therefore equivalent to confidence in Government. How can anyone have confidence in a system where 16 prisoners, charged with serious crimes relating to the security of the State, had to be released and then rearrested because of errors made by the Government? Those who engage in crime, especially subversive crime, have little enough regard for the institutions of State. The legal charade last week of release followed by immediate rearrest could send a wrong message, likely to be cynically received, that the administration of justice can be manipulated at will. The procedure is open to legal challenge. I gather that a number of applications will now be heard under habeas corpus. The possibility that prisoners could be released again on a more permanent basis as a consequence of a ministerial error is damaging. Even Deputy Eric Byrne admitted the Minister would have to resign if one prisoner was set free.

In a case in 1991, where a judge was allowed to continue to sit because of an official error relating to his date of birth of which the Minister could not reasonably have been aware, the irregularity was fatal to conviction. John Kelly, in The Irish Constitution states——

Did the Minister who appointed the judge resign?

John Kelly in——

Did the Minister resign?

I will return to that.

That is double standards, Deputy.

Let us hear the Deputy without interruption.

Where is Labour now?

John Kelly in his book refers to Article 30.4.1 of the Constitution which says that justice shall be administered in courts of law. He implied the judge purporting to administer justice had been validly appointed.

Coming only a few months after the Duncan extradition debacle, all this gives ammunition to critics outside this jurisdiction who would be less than impressed with another inefficiency at our end. This undermines the Minister's repeatedly declared will and determination to fight crime and subversion with all means at her disposal. From the beginning, the Minister for Justice has given the impression she is not in charge.

No one could credibly say that about her predecessors all of whom performed their jobs in difficult circumstances to a high standard. We have great satisfaction on this side of the House in our last three Ministers and all our Ministers for Justice, including Deputies Máire Geoghegan-Quinn, Ray Burke and Gerard Collins. No one was in any doubt in their time that there was a firm hand in the Department of Justice which had the respect and confidence of colleagues in the ongoing fight against crime in very difficult circumstances.

Why was Deputy O'Dea not included?

If something went wrong, it was corrected. There was no attempt to evade responsibility. The last Minister for Justice nobly offered to resign if it would have helped save a good Government in the spurious dispute over the absence of a reference in the Taoiseach's speech to the Duggan case, something subsequently established by the subcommittee of the Select Committee on Legislation and Security as irrelevant. Fianna Fáil Ministers did not need extravagant and unbelievable testimonials from their colleagues and their civil servants.

I ask the Taoiseach, because he refused to mention it, if it is in the public interest to have Deputy Owen, a constantly embattled Minister on issue after issue, in charge of such a sensitive Department as Justice? What we discuss goes to the heart of the doctrine of democratic accountability. We are not discussing some minor administrative or technical error although the Government has tried extremely hard to no avail over the last five days to convince the Irish public this error is such. We are not talking about some technical issue down the line in the Department which no Minister could reasonably be expected to know about. There are plenty of such issues. We are talking about a matter in the personal charge of the Minister relieving a judge in the Special Criminal Court and appointing another. These decisions were taken at Cabinet at the request of the Minister for Justice. She had to be familiar with the case as did the Attorney General and the Taoiseach.

A decision was published the next day in The Irish Times of 2 August on foot of a briefing by the Government Press Secretary in an article by Geraldine Kennedy headed “Spring to act as Taoiseach while Bruton goes on holidays”. The article also stated “the Government also appointed Judge Kevin Haugh... to the Special Criminal Court to replace Mr. Justice Dominic Lynch”. I brought this article to the attention of the Taoiseach in a question about the role of the acting Taoiseach to which he finally replied on 8 October, and it is surprising that on that day it rang no bells.

The Special Criminal Court is one of the most important courts, its function is vital to the security of the State, which is the first responsibility of any Minister for Justice. In a High Court judgment on 19 May 1983, Mr. Justice Barrington made the point that the court was a creature of statute and that the conditions of the statute on which its jurisdiction depended must be vigorously and meticulously observed. In a Supreme Court judgment in 1990, Mr. Justice Walsh said that the provisions relating to the procedure of the Special Criminal Court must be construed strictly because an accused person was deprived of the constitutional right to trial by jury. If there have been irregularities before, they were not in the ultra-sensitive Special Criminal Court where particular care is necessary.

The Minister for Justice has a special personal relationship with the Judiciary. She is present at Áras an Uachtaráin when the President confers appointments on the most senior judges. Subject to Government decision, it is on the Minister's recommendation that all judicial appointments are made. Such appointments are brought to Government only after consultation with the Attorney General who is head of the Irish Bar, so he is equally involved. The Minister is also personally responsible for ensuring that the State's gratitude is expressed for long service in a court such as the Special Criminal Court which is a particularly onerous responsibility. Yet in this instance three months passed and a letter was still not ready for ministerial signature to notify Mr. Justice Dominic Lynch that he was being relieved as he had requested and at least thanking him for his service. The Minister clearly forgot to ask about the matter. A Minister who paid more attention to what was happening in her office might not have so readily forgotten. The Cabinet Secretariat were able to have the decision published in Iris Oifigiúil within eight days. It has been a time honoured tradition for Ministers to go through decisions with the Secretary of the Department or a senior official. That has happened down through the years in respect of all kinds of minor, not to mind major, decisions.

It is clear that Mr. Justice Dominic Lynch was concerned to get clarification about his position, that is why he wrote to the Minister on 10 October. We now have the terms of that letter which was belatedly brought to the attention of the Minister last Thursday, and read into the record of the House during this debate. Last Thursday the Minister stated the facts, "in so far as they could be established at that stage". She said she thought it was right that the House should have the facts but she did not think to mention the letter from Mr. Justice Lynch of which she was already aware. To paraphrase what the Taoiseach said in May 1995, if no one had asked her the question, would we know about it today? The Minister is clearly guilty of covering up the truth, and the extent of her failure in the matter is now clear to everybody. Revelation by drip-feed is totally destructive of confidence in Government. The mere suspicion of such a scenario was sufficient to lead Labour out of Government not just once but twice in November and December 1994. Where stands the Tánaiste today? Will the Minister state categorically— and it would be helpful if she did rather than engaging in more drip-feeding of the information — whether any court official was in touch with her or her Department about this matter? If so will she give the time and the circumstances?

The Minister and her Department are responsible for administering the courts. There is no autonomous court service in this jurisdiction. Perhaps the Taoiseach was right when he said today that perhaps we now need one, but it has been dragged out of him in the present circumstances, and we will come back to it another day.

The Minister had already announced a decision.

It was announced in May.

The Minister, through her Department, should monitor as a matter of course what is going on in the courts. It defies belief that a Minister and a Department that administer the courts should still not be ready to officially notify a judge, even after three months, that he has been relieved by his duties by Government decision and is, therefore, no longer eligible to sit in the Special Criminal Court. One would have thought that one of the first priorities would to ensure that such a decision was communicated immediately, particularly when the court in question is vital to the security of the State. What has occurred is an appalling lapse in administration and accountability.

The Attorney General's office is also in touch with the courts on a daily basis. because of its overall responsibility for the representation of the State and the public interest in criminal and civil proceedings. The programme A Government of Renewal, refers to the Attorney General's office as "upholder of the public interest in the courts of justice". The Attorney General clearly failed to uphold the public interest in this instance. The matter eventually came to the Attorney General's attention, though only as "an impression", and he wrote a letter to the Minister for Justice on 2 October. Why was there no speedy follow up? Why in view of the importance of the matter, did he let it ride for another month? When the Attorney General wrote to the Minister on 2 October, was he aware of the serious legal implications? If not, that was surely a lapse on his part. If he was, surely the letter should have been followed up immediately by a telephone call or personal conversation on the many occasions that the Attorney General meets the Minister. As the Minister stated last week, the Attorney General's letter of 2 October requested "that I establish whether the Government decision had been notified to Judge Lynch and to the President of the Circuit Court". The Minister did nothing about the letter which did not receive her personal attention. How that happened is another matter. It is not good enough that another month should have elapsed before the Attorney General took any further action. He knew about it. If he knew the implications, he is in a very serious position.

We thought we had all agreed in this House that it was time to bring the Attorney General's office out of the age of Victorian bureaucracy and equip it with the latest technology to assist swift follow-up correspondence. We were told in the second report of the Review Group on the Attorney General's office in April 1996 laid before the Dáil: "In less than one year there has been a fundamental change. The culture of information technology is now firmly embedded in the office." This is obviously not the case. We were further told that the Attorney General is developing a case and correspondence tracking system, which when fully operative, will enable the Attorney General and senior management to keep sensitive office correspondence and files under continuing review. It is obviously not working, or working much too slowly.

On 15 October I asked the Taoiseach whether there was a large backlog of files in the Attorney General's office and whether there were priority cases lagging far behind and running into difficulty. The Taoiseach replied that any legal adviser had to prioritise his or her work, that he was not aware of any significant backlog and that his impression was that the Office of the Attorney General was working exceptionally well and to a high standard of excellence. All that confidence has been undermined in the light of what happened.

It is mind-boggling that the Minister does not have every letter from the Attorney General, the colleague at the Cabinet table closest to her in terms of function, put in front of her immediately as a matter of course. I do not suppose there would be a huge pile of such letters. When I was a Minister I insisted that I be immediately shown all letters from the Taoiseach, other Government Departments and senior officers of State. With my private office I developed a system of tracking such correspondence when it went through the Department for advice and further consideration. The Minister obviously has no such system in operation despite being nearly two years in office. She has had ample opportunity to instruct her private office about what she needs to see and does not need to see immediately. If the Minister is not interested immediately in seeing letters from the Attorney General she is culpable.

She does not want to see it.

She has no effective system. She requested and knew of the Cabinet decision but did not implement it. She did not ensure that she immediately received, as a matter of course, letters from the Attorney General and from a senior judge so she could act on them. There is not just one letter involved; there are several letters.

There has been a litany of Fine Gael mishaps with technology in the lifetime of this Government. Deputy Hogan was sacked for using the fax machine; the Minister of State, Deputy Coveney, was demoted for using the telephone; the Minister for Agriculture, Food and Forestry, Deputy Yates, used a mobile telephone when he should have been in Dublin Airport. The Minister for Justice's story is different: she did not telephone or write to the judge to inform him of the Cabinet decision. The Attorney General did not telephone the Minister to tell her Judge Lynch was still on the bench and nobody rang Judge Lynch to find out when he sent his second letter updating the Minister.

On 27 October 1994, as can be seen from the Official Report, Vol. 446, Col. 1136, Deputy Owen told the Dáil: "Under the Ministers and Secretaries Act, 1924, a Minister is responsible for everything that happens in his or her Department". That is the law.

Who said that?

Following the controversy in the Brendan Smyth case the parties coming into Government, despite what they said in the Dáil, might have believed the legislation was too rigorous. The Taoiseach clearly does. However, the Government has not yet reformed it. I raised this matter with the Taoiseach on the Order of Business on 23 October when I asked him if the reluctance to act on promised legislation to improve openness, transparency and accountability was part of the Government's general sloth.

However, even if the legislation had been reformed the Minister would surely remain responsible and accountable for the execution of decisions which she prepared, brought to Cabinet and brought back from Cabinet. She is also accountable for lack of action on correspondence from the Office of the Attorney General and from Judge Lynch which was addressed to her. If the Minister and the Attorney General are not accountable for what happened in this case, is there anything for which they are accountable? Does the doctrine of democratic accountability not begin to break down?

The Minister offers a distinction between accountability and culpability which the Tánaiste dismissed two years ago on 16 November, 1994. He stated: "If this House were to accept that a Minister would never be accountable to the Dáil without direct culpability on his or her part, the principle of accountability would wither away. Without accountability the value of a parliamentary democracy would be fatally undermined". The quote is in the Official Report, Vol. 447, Col. 346. Does this still stand? I look forward to hearing from the Tánaiste.

The inquiry set up is a political red herring designed to focus attention on failures within the Civil Service. What are the terms of reference and do they exclude attaching blame to the Minister? It is obvious the Minister is more focused on public relations and does not have a hands-on approach to her Department. An inquiry is not necessary to show that.

Fianna Fáil in Government always worked within the 1924 Act. It was hard at times. It was hard for Fianna Fáil Ministers to take the political hassle but they answered to the Act. If certain civil servants fail to perform in a particular area their responsibilities can be re-allocated. That happened many times under Fianna Fáil Ministers. Ministers are entitled to demand the best service the Civil Service can provide but if civil servants fail they should not be scapegoated. They should not be scapegoated on their failures when Ministers do not make best use of the service provided.

I have great respect for civil servants in the Department of Justice and for their work in all types of difficulty. However, I take grave exception to the statement issued by the Association of Higher Civil Servants in the Department. It was most political.

This country has a tradition of having a politically neutral public service regardless of who is in Government. It is unprecedented that a Civil Service organisation would issue effusive public statements in support of a Minister who is likely to be subject to a no confidence motion in the Dáil. The Government must not corrupt the neutral ethos that has hitherto been the prevailing characteristic of one of the key institutions of the State.

Maybe they were just telling the truth.

The head of the Civil Service, the Secretary of the Department of the Taoiseach, should take measures to make it clear to those concerned that the statement was not in order and to protect its independence, an independence that has been maintained by all political parties in all circumstances.

That sounds like a threat against the Civil Service.

It is not a threat.

The Government is responsible for staffing levels. It allowed public service numbers to rise by more than 1,000 persons since December 1994 and imposed a temporary embargo that has since been lifted. If the courts division is understaffed it is the Government's fault for not directing both existing and additional resources to where they are most needed.

The Government's argument appears to be that neither civil servants nor the Minister is to blame but something abstract such as lack of resources to do the job properly. This makes a nonsense of democratic accountability and the Taoiseach knows it. He said a great deal about democratic accountability during his many years in the House. The Taoiseach is answerable in this House for the Attorney General and has leapt to the defence of the Minister for Justice in terms which cast serious doubts on his political judgment. On 15 November 1994, the Taoiseach asserted that Ministers were legally responsible for decisions of Departments under the Ministers and Secretaries Act and criticised the then Government for alleged "evasion of responsibility, by shoving the matter into the hands of officials". He declared this "is not acceptable" in the Official Report, Volume 447, Column 39. What was not acceptable then is apparently acceptable now. The Taoiseach in Government has changed his mind about everything he said in Opposition or when he held any other office in the State.

It is obvious this Government came into office with a false prospectus. Its members said one thing but have now changed their minds. Most of the promised reforms designed to open up Government and improve openness, transparency and accountability have been reneged on, put on the long finger or are proving ineffective. The Office of the Attorney General continues to give rise to the same controversy as previously, even though the Taoiseach has issued two reports and claimed many times there are no problems there. We know there are many problems in that office.

One of Ireland's senior businessmen privately observed recently that most of the Ministers in this Government, especially Fine Gael Ministers, are inexperienced. That is why so many of those Ministers, such as Deputies Owen, Lowry and Yates, have been found wanting in recent times.

A senior businessman makes a private observation. The Deputy is short of sources when he uses that one.

The Minister for Health, Deputy Noonan, has some experience. The Minister for Enterprise and Employment, Deputy Bruton, has a reputation for being incapable of making decisions. The Taoiseach is notorious for being something of a loose cannon, as we witnessed at the end of his speech. I recently heard that the Revenue Commissioners were put on alert to work out a tax break to give taxpayers a Christmas present. Everybody in the Department was running around until somebody held back the Taoiseach and said the idea was mad.

Even the Deputy's moles are misinformed.

The Taoiseach has a long tradition of doing that. He reads something in a foreign magazine and goes charging off in that direction.

This is like an episode from "Bosco".

Former Ministers such as Deputies Alan Dukes, Jim Mitchell, Peter Barry and Austin Deasy are acknowledged as talented Deputies. Deputies Alan Shatter and Frances Fitzgerald languish on the backbenches because they are not clones of the Taoiseach and might present a challenge to him. All the experienced Deputies are on the back benches while the inexperienced are on the Front Bench.

The Deputy had his own reshuffle.

The latest debacle is the responsibility of an accident-prone Minister who is also deputy leader of Fine Gael. For a whole year and a half she was unable to impose justice and law and order in a major Government Department——

The Deputy has not the courage to shuffle his own team.

We will be shuffling over there very shortly.

That is wishful thinking.

Despite the Brinks-Allied robbery, the spate of murders, especially of women, the escalating drugs problem and the sense of State impotence and all the difficulties in the grossest street disorder, it was only after sustained pressure from this side of the House and from the public, especially local communities and the media, and following the murder of Veronica Guerin, that the Government was finally forced to change tack and to accept insistent Fianna Fáil demands for, among other things, a bail referendum, reinstatement of the prison building programme — which the Minister allowed to be scrapped when she missed a meeting — and legislation to seize the assets of suspected drug dealers. At last some heat has been brought to bear on drug dealers, not least by fed up communities, but it should have been done much earlier. There is still no great confidence that the Government and its law enforcement agencies are doing much to deal with the problem effectively.

The partners in Government, especially the Tánaiste, also bear some of the blame. One of the curses of this Administration has been the determination of the Tánaiste, with his legal background, and his office, to act as surrogate Minister for Justice, second-guessing all the Minister's proposals. In the last Government the Tánaiste was more exercised about who would get promotion to the High Court than about other serious issues. In those crucial days of November two years ago the old Bar network counted more with the Tánaiste, who twice preferred to listen to an Attorney General, of 48 hours standing and then three weeks, standing than to colleagues with whom he had served two years in Government. His friends at the Bar must have advised the Tánaiste that the extent of the crime problem was being exaggerated. He vetoed a referendum Bill proposed by the Minister for Justice, Deputy Owen. When the Minister for Justice was away, the Minister for Finance, Deputy Ruairi Quinn, cancelled the plans for extra prison spaces at Castlerea——

I have actually opened the first phase of it.

——and a new women's prison. It is appropriate that we will be voting no confidence in the Government as a whole. It is well deserved. I know of no one who is impressed with this Government's handling of the economy, particularly public expenditure and taxation. There are continuing difficulties in the peace process. Issues such as Telecom Éireann and BSE have been broadly mishandled.

The Government inherited much progress on all fronts. I am glad the Taoiseach today put on the record exactly how he inherited the economy and several other issues. He fails to put on the record anything substantial that he achieved in the last two years. There is not a solitary item he mentioned today that he can stand over and say is his.

There are 100,000 more people at work than when I became Taoiseach.

Our Government was more focused. It is not my purpose to shift attention from the Minister for Justice. I will not refer to all the other issues. I want to keep this debate on the Minister for Justice, the Attorney General and the Taoiseach.

A new Fianna Fáil-led Government is essential for this country if all the progress of the last ten years is to be sustained. The sooner we have an election the better if that is what the Taoiseach is leading up to. Everybody knows we are looking at a caretaker Administration with at best only a few months to run. We have had the hepatitis C and BSE issues and this debacle. While I would not wish to deny that some good work has been done by some Ministers and some Ministers of State, the episode has highlighted the incompetence at the heart of the Government and it is surely time for the Taoiseach and the Government to test the people as we head into the fifth year of this Dáil. I have a suggestion for the Taoiseach.

A brainstorm, it took nearly two years to get it.

That is something with which Deputy Carey will never be afflicted.

Let us hear the Member in possession, please, without interruption from either side.

It is a suggestion for a new logo for the Government. We believe it should adopt the new tourism logo. It can show three figures in tight embrace, representing the dance of the dependants, the three parties in the Government all clutching each other for support. Inside the embrace, instead of a little shamrock, why does it not have a little unopened envelope? The logo would sum up the Government beautifully — three bodies holding each other up and trying to conceal the disasters behind the embrace of tatty teamwork. The Government claims the difference is that the parties trust each other. The Taoiseach's central theme is that this is a great Government. He continues to say it.

Did we miss the joke?

The Government is the joke.

We were kind to the Minister today, he has had too many other days. I want to direct my remarks to the Taoiseach. The Government claims that the difference is that the parties trust each other and that this trust is keeping them all together. It is wonderful but it is also arrogant. What about public trust? Does it not matter to the Taoiseach? He talks continually here as he brushes this and that issue aside and he has no interest in the people outside. He arrogantly defends everything that is indefensible. He rarely apologises and glosses over everything as if he does not care about the public. That is his tactic. As an opinion poll showed in December 1994, the previous Government made up of Fianna Fáil and Labour had created the current economic boom, negotiated the EU funding, had responsibility for the three month peace process and enjoyed a high degree of public trust and support when it was abandoned. The Taoiseach's argument does not hold up.

The previous Government lost two by-elections.

The Taoiseach has won no by-election, he has won nothing.


Let us hear the Member in possession.

We finally managed to achieve more than Private Members' time plus two hours for this debate, which gives us an opportunity to debate the central issues. The central issues will continue to be debated if the Taoiseach wins the vote. The habeas corpus cases are before the High Court. From what is a joke of an inquiry we will see what happens in the Department and what other information the Minister has.

The Deputy should reflect on the reference he is making to a joke of an inquiry where he is referring to individuals of high repute who——

It is a joke, it is a conspiracy to say——


The inquiry that is taking place is for the purpose of deciding how a Minister should have had a proper system in her Department. It is not an inquiry that is central to the following issues: how a Minister went to the Cabinet and asked for decisions about a judge, got those decisions, went back to her Department and refused to implement those decisions; how an Attorney General wrote a letter on 2 October and the Minister did not deal with it. It is about how the Attorney General wrote another letter on 1 November and nobody dealt with it. It is about how the judge concerned wrote a letter on October 10 and nobody dealt with it. The Minister could have made one mistake, but this House does not need to know what civil servant did what. We need to know how the Minister was so incompetent on every issue before her. She has been incompetent and culpable on every issue she has laid her hands on for the last two years and she should resign.

"This is a political crisis, not an administrative one. Every time there is a political crisis in this House, this Government seeks to blame administrators and turn it into an administrative crisis. This is a political crisis touching on the integrity and veracity of Ministers."

These are not my words but those of the Taoiseach speaking here on 30 November 1994 Vol 447 Column 373 of the Official Report. This evening I propose to judge this Government by no higher a standard than that set by the Government itself for its own term of office.

It says in the programme for Government that the Government belongs to the people and the relationship between the Government and the people it serves has been damaged by a lack of openness. It says that relationship must be renewed so that the people have total confidence in government and in a political system which is fully inclusive. On 17 November 1994, Taoiseach John Bruton, then in Opposition said:

The lesson is that the truth should not come out in instalments. The truth, the whole truth should be given on the first day. Let the cards fall as they will after that. That is the good lesson for all of us who aspire to high office.

Why did the Taoiseach not take an opportunity today to answer some of the questions I posed over the last few days? Did the Registrar of the Special Criminal Court contact the Department of Justice or any other Department as regards Judge Dominic Lynch's position? Did a leading defence lawyer contact the Department of Justice and other Government agencies in early October, explaining what had happened in the Special Criminal Court? Did that defence lawyer telephone last Tuesday and threaten to go public if the matter was not sorted out? Why will the Taoiseach not publish the letter sent by Judge Lynch to the Minister or the letter sent by the Attorney General to the Minister? I believe the publication of those letters would throw light on this debate.

When the Taoiseach took office on 15 December, he said that the Government must go about its work without excess or extravagance, as transparently as if it were working behind a pane of glass. Behind that pane of glass there is now a stone wall which has been built and fortified by the Tánaiste, Deputy Spring, the Minister for Social Welfare, Deputy De Rossa and the Taoiseach, who pledged in the programme for Government to reform our institutions at national and local level so they would provide, service, accountability, transparency and freedom of information.

This debate is not about the personal integrity or the personal qualities of the Minister for Justice, Deputy Owen, who is a woman of the highest integrity. She is affable and hard-working and none of those qualities is in question. It is unacceptable to level criticism against her because of her gender. This debate is about confidence in the Minister for Justice, as the person who holds the most sensitive position in the Government. The primary duty of Government is to protect its citizens. If people cannot have confidence in the Minister in charge of that key ministry of Government, they cannot believe the Government is protecting them.

The Taoiseach referred to political point scoring. Would we have a bail referendum on 28 November if the journalist Veronica Guerin had not been murdered? Would we have a tribunal of inquiry into the Blood Transfusion Service Board if Brigid McCole had not died? Would we have an independent food inspectorate if Russia had not banned our beef? Would this Government have promised an independent prison services board if it had not been for the present fiasco? All these crises have led to Government action and without them we would not have had action.

The Taoiseach has sought to distract the public. He has spoken about point scoring, opportunism and playing party politics. He said today we were prejudiced and into the blame game. These are all colourful terms. We could make up a dictionary, of which the Taoiseach would be a great author, on how to make little of serious political debate. The accusations are wearing thin. There is no excuse for what happened in this instance. It is incompetent, insensitive and wrong. It is not good enough for the Taoiseach to constantly keep running for cover from his responsibilities.

Listening to the Taoiseach's speech I found it hard to believe he was the same person with whom I worked so closely in Opposition. The Taoiseach spoke about not understanding the concerns of the poor or the low-paid. As someone who grew up on a 39 acre farm in Dublin, I know all about poverty and low pay. I will not take lectures from the Taoiseach about not understanding those on a low income. The Taoiseach should be careful in the accusations he makes about others. I want to create the kind of opportunities I had for society. I want an enterprising and fair society and a system of Government where Ministers take responsibility for their actions. It is hard to believe that the former champion of Dáil reform is running for cover. I remind the Taoiseach of the former Premier of Denmark, Poul Schluter, who resigned in January 1993 because he stood by his Minister for Justice.

What are the legal implications of what happened? There is no more fundamental a court in this country than the Special Criminal Court. There is no more fundamental an error than the wrong composition of that court. The implications are serious and the prisoners in question are charged with serious offences, some in relation to the making or possession of explosives, others in relation to the investigation into the murder of Garda Jerry McCabe. These are not ordinary matters. The possibility that any of these prisoners could walk free because of Government incompetence is sufficient to demand ministerial accountability and responsibility. The Government cannot give us an assurance that none of them will walk free because it is a matter for the courts and not the Government. Deputy Eric Byrne gave conditional support to the Minister for Justice today — conditional on nobody being let free. I resent the fact that anyone would seek to put political pressure on the Judiciary by telling them if they make a certain decision the Government will collapse.

One of the definitive authorities in this area is Mr. Justice O'Higgins, who in a hearing in the case of the State, McDonagh v. Frawley in the Supreme Court in 1978, ruled:

In cases where it has not been shown to the satisfaction of the court that the detention is "in accordance with the law" in the sense indicated, the release of the detained person must be ordered and notwithstanding judicial dicta to the contrary, the order of release may not be coupled with an order of re-arrest. The protection of personal liberty which Article 40.4. is intended to ensure, would be hollow and ineffectual, if the order of release was not unqualified and unconditional.

That is a clear judgment. For this and other reasons, what has happened is extremely serious and cannot be dismissed as a clerical or administrative error.

Accountablility is not a buzz word. It goes further than transparency or openness. It strikes at the heart of our parliamentary democracy and is its cornerstone. The Government, which is the executive arm of the State, is accountable through the Dáil. The Government must be accountable through its elected representatives. It is the Opposition's duty in a democracy to be vigilant in ensuring a Government is accountable and the Opposition must be fair and even-handed. It must not just seek accountability when one set of parties is in Government. It is not only a matter for the Opposition to ensure accountability. It is also a matter for the partners in Government who have a duty to ensure that if things are wrong, they are put right. This is an absolute, not just something which can be chosen. What happened last night is similar to what emerged in the Duggan case. At 10.22 a.m. on 16 November 1994 the Labour Party was prepared to go back into office with Fianna Fáil. Later that day it told us all had changed because the Tánaiste had become aware of the Duggan case. What annoyed the Tánaiste about the Duggan case is that it had not been brought to the attention of the Dáil a few days earlier. He said that fundamentally changed everything.

If the Tánaiste and the Labour Party are to be even-handed and consistent they would have to admit, in fairness, that what happened yesterday evening is the same.

It is not the same.

It was not as if the Minister for Justice did not get an opportunity to talk about the correspondence from Judge Lynch. My colleague, Deputy McDowell, asked a supplementary question about her statement that Judge Lynch had reiterated his request to be delisted last July. There was no reference to an earlier request and Deputy McDowell asked the obvious question: when did he make the first request? The Minister dealt with Judge Lynch's correspondence on that occasion and it is extraordinary that she failed to mention the letter which came to light last night after the Opposition parties had raised questions.

It is fair to say that responsibility cannot be equated with personal culpability. In case there is any doubt about this I can quote no greater an authority than the Tánaiste who, on 16 November 1994, stated:

The key issue throughout this entire episode has been accountability — the right of the public to secure adequate explanations and the responsibility of the holders of high office to take responsibility for their actions.

At the outset I have to say that semantic distinctions between responsibility and culpability, however interesting they might be in their own right, do not meet the needs of this case. If this House were to accept that a Minister would never be accountable to the Dáil without direct culpability on his or her part, the principle of accountability would wither away. Without accountability the values of parliamentary democracy would be fatally undermined.

He went on to say:

Are we really to believe that a Government or its agents are only accountable in respect of the things they have done and never in respect of the things they should have done?

Accountability means that a Minister must take charge, must exert authority over his or her Department, and must avoid doing certain things because they are wrong but must do other things that are required of them. That is what duty is all about: Ministers must take charge and discharge their duties. A Minister cannot become a prisoner of his or her staff.

What was the duty of the Minister in regard to this Government decision? First, there was a duty to ensure it was implemented; second, there was a duty to ensure the judge and the court became aware of it; third, there was a duty to ensure the Minister saw correspondence from the Attorney General; fourth, there was a duty to ensure she saw correspondence from any member of the Judiciary but, particularly, from a member of the Special Criminal Court and, fifth, there was a duty on her to ensure the Special Criminal Court was properly constituted.

If we accept that a Minister who "does not know" is able to get away with it then what we are saying is that a Minister can abdicate his or her duty to this House and the public by simply not knowing. I wish to quote from an authority on this matter, the late John Kelly. At footnote 7 on page 123 of the 1983 edition of his book on the Constitution he states:

The Departments have no legal personality, they are merely organisations with public purposes defined by Statute. Any legal personality required for those public purposes is to be found in the Ministers in charge of them.

It is clear the Attorney General has key responsibilities in this case and I am surprised the Taoiseach took the opposite view. First, as the law officer to the Government, the Attorney General surely has a right to advise the Government if the Special Criminal Court is not properly constituted and, second, as the protector of the public interest, it was his duty to ensure that no citizen went before or was tried by a court which was not properly constituted. For those two reasons, the Attorney General had a key role to play in this matter. The Attorney General simply writing a letter is akin to writing a letter to the fire brigade when one's house is on fire. This is not good enough.

In recent days many Ministers said that when the Minister for Justice, Deputy Owen, found out about the matter she acted quickly. The same cannot be said of the Attorney General. Did he tell the Taoiseach? The Minister for Social Welfare, Deputy De Rossa, said the first he heard about these events was late Wednesday evening or early Thursday morning. I presume, therefore, he did not tell the Government. Why did the Attorney General not speak to the Minister? Was he not concerned that citizens would be tried before a court which was not properly constituted?

Of all people, Dermot Gleeson, the Attorney General, could not have been in any doubt about the consequences of this because in 1981 he was one of the counsel involved in the State-Walsh v. Murphy case in which a person convicted of drunken driving had the conviction quashed on the grounds that the District Justice had not been properly appointed —Irish Reports, 1981, page 275. The Attorney General, Dermot Gleeson, could have been in no doubt about the legal implications of a judge not being properly appointed or a judge in place who should not have been there. The constitutional obligations of Ministers and the legal ones under the 1924 Act cannot be abandoned or delegated as they are personal functions for which Ministers must be responsible. Even if the Government amends the 1924 Act there will never be a situation where an official will be responsible for who sits on the Special Criminal Court or for the appointment of judges; this will always remain the responsibility of Ministers.

During the early part of the term of office of the Government, the Taoiseach insisted there would be political accountability and the former Minister, Deputy Coveney, and the former Minister of State, Deputy Phil Hogan, walked the plank in the interests of this ideal. However, the Taoiseach set a limbo bar of political standards once matters began to affect the Labour Party. The only other time I have sought the resignation of a member of the Government — and this includes recent events — was during the case involving the Minister of State, Deputy Fitzgerald. I did so because I believed the Minister sponsoring the Government's ethics in office legislation was not the appropriate person to write a letter of the kind she wrote to 700 business people seeking support for a fund raising event. The tone and terms of that letter were in conflict with her position as the sponsoring Minister for a Bill of that kind and I sought her resignation.

When I heard the Tánaiste's statement last night I thought a chink had appeared in the armour; I thought the Labour Party was heading for the political lifeboat in case the ship went down. I do not know if that is still the case but I wish to make a point to the Labour Party. If the Duggan case was so important on 16 November 1994 as to require from Government despite an agreement entered into at 10.22. that morning then what has happened in this case is equally important. I say to the public sector unions that a shortage of staff or a shortfall in administrative budgets is a completely unacceptable excuse. The administrative budget for the Department of Justice has increased by 20 per cent since the Minister took office, the staff in the courts section has increased by 40 and the budget has risen by 32 per cent. I cannot, therefore, accept that there it is a question of a lack of resources or staff in the Department.

The issues at stake in this case go to the heart of parliamentary democracy. It is about accountability and responsibility and a Taoiseach in charge of a Government who insists, regardless of who the Minister is and without fear or favour, on the same standards applying across the board. Once trouble hit the Labour Party the Taoiseach abandoned the high standards he had initially set for his Government. He has made a crucial mistake for which he will pay a very dear price. The Taoiseach was not prepared last week to answer questions in the House about the Attorney General. He wants to wash his hands and say he has no role in the appointment of judges. He has no role in the appointment of judges but he had responsibility when he found out about the matter. However, he failed to take sufficient action.

The quote from Macbeth: "When sorrows come they come not in single file but in a battalion" is very appropriate to the situation in which we find ourselves at present. The Taoiseach referred to "tracking", something he and the Government have been doing for a little too long. It is hard to have confidence in a Government with a Minister for Justice who gets into crisis after crisis and fiasco after fiasco. On 16 November 1994 the Leader of Democratic Left said: "We want to be involved in a Government which does not go from crisis to crisis". He also said: "All too often the Labour Party is prepared to look the other way, to turn a blind eye and to leave unasked questions which need to be put".

The Labour Party has adopted a docile and compliant attitude on virtually every issue of principle to have emerged during the lifetime of this Government. Whether on hepatitis C, the beef crisis or now in relation to this matter, Democratic Left has adopted a compliant and docile attitude. It does not ask the hard questions and does not seem to use its critical faculties. Shame on all of them. They are all responsible for ensuring that accountability is upheld in Government and that our parliamentary democracy, the foundation and cornerstone of which is accountability, is protected. I believe they have let the people down by not ensuring that it is.

The failure to inform Mr. Justice Lynch that his membership of the Special Criminal Court had been terminated was one of great seriousness. Let me make it clear that I fully recognise that I carry political accountability and responsibility for that. The issue now is how that accountability should be carried out. I came into this House last Thursday, at the earliest available opportunity, to inform Members of circumstances surrounding the need the previous night and early that morning to release a number of prisoners, who were subsequently re-arrested, as a result of a problem with the membership of the Special Criminal Court.

As the House is now well aware, this arose because a Government decision dated 1 August 1996 relating to the composition of the court had not been fully implemented. On Thursday I said that I was giving the facts I had in so far as they could then be established. I also made it clear that I did not want to give partial information but, most importantly, that I was immediately setting up an independent inquiry so that all the facts could be established and made known to this House.

I regret the reference to this inquiry being a red herring. I believe it is insulting to the two very fine people who have been appointed to carry it out — Mr. Seán Cromien and Dr. Ed Molloy. I regret that Deputy Ahern cast aspersions on them by calling this inquiry a red herring.

He did not cast aspersions on the individuals.

He did not do that.

I made it clear that there was more information, some of which I was aware of, and I also made it clear that as soon as I had all the facts I would come back to the Dáil and I would be fully accountable for what had happened in my Department. I have told my Department that the independent inquiry will have to investigate all the circumstances, all the papers, all the communications and all the phone calls relating to the non-implementation, in its full force, of the 1 August Government decision to delist Judge Dominic Lynch and put Judge Kevin Haugh in his place.

I was able to establish beyond any doubt that a letter had been received in my Department, dated 2 July, from Judge Dominic Lynch. I was able to establish, beyond any doubt, that a letter had been received in my Department on 3 October from the Attorney General, and to establish what had happened to that letter because there were marks on it. I fully informed the Dáil about both of those letters.

Any other information which I gave to the House was information about which I had no doubt and also it related to my knowledge of events after I received a letter on 5 November from the Attorney General. I was conscious in giving this information of being accountable to the Dáil and that the people who had been involved in any of these communications were going to be the subject of the inquiry and they would have to give an account of their actions.

A letter from Judge Dominic Lynch was brought to my attention shortly before I left my office to come to this House. This letter was not date-stamped by the Department of Justice nor was it actually dated by the sender when it was received in the Department. Owing to the fact that there were no markings on it, nobody could tell me in the limited time available when it came in, how it appeared on the file, who had put it on the file and what its status was in relation to the Government decision of 1 August. The only thing I knew was that I had never seen it before Thursday, 7 November.

Until I was able to establish if this letter had relevance to the period after 1 August, as the letter could have been received prior to the 1 August decision, I instructed that this letter be part of the inquiry. In the interests of the inquiry and in the interests of fair play, I could not speak with any certainty about a letter shown to me shortly before I made my Dáil statement last Thursday, a letter whose date was unknown and whose progress through the Department was unknown.

There may well be more information about which I know nothing which will become evident in the course of this inquiry. Any such information will be thoroughly investigated by this inquiry which has already started. Between last Thursday and next Monday when the report is due there may well be rumours, questions or suggestions that I may or may not be able to confirm or deny.

Since speaking last Thursday I have been able to confirm that a phone call was received some time after 4.30 p.m. on Wednesday, 6 November by an official in my Department from an official in the DPP's office. I have also been informed this morning that another staff member received a telephone call last week on Tuesday evening, 5 November from the Special Criminal Court Registrar. I do not know what other phone calls, if any, were made. I do not know what conversations took place on those days. Perhaps more information will come to light about those days or the previous three months which I do not yet know but I can assure this House that I have never failed to be accountable to it.

Hear, hear.

Accountability refers to the obligation to furnish information, to furnish an account, and I have never failed to do that in this House.

Hear, hear.

I have always made it clear whenever I have come to this House, particularly in the immediate aftermath of a serious crime or a tragic event, that I have been giving an immediate response to this House and as soon as possible. I have always given any further information to this House. I will continue to do that in my role as Minister for Justice.

Hear, hear.

When will we get the Duncan report?

On Friday morning, 8 November I telephoned Judge Lynch to express my regret and apology on my own behalf and on the behalf of the Department that his name was now the subject of public controversy and indicated my full support for him as a member of the Judiciary. In the course of that conversation I also apologised to him that his letters had not been acknowledged. He mentioned his second letter and I indicated to him that it was undated and that I had no idea when that letter was received as I had only seen it the previous afternoon. He indicated to me that it might have been in early October but that he might be able to check. The conversation concluded with me reiterating my appreciation of his courtesy to me, or words to that effect.

Yesterday, at approximately 1.35 p.m., I received in my office a letter from Judge Dominic Lynch referring to our conversation on Friday and indicating to me that he had sent a letter in the afternoon post of 10 October 1996 addressed to me and marked "personal". I sought permission from Judge Lynch yesterday evening to make public the contents of his letter of 2 July, his undated letter of 10 October, as is now known, and his letter of 11 November.

I will read the contents of those letters.

Will the Minister publish the Attorney General's letters?

I have the original letters here which I sought permission from the inquiry to have with me, lest anyone should doubt what is in them. The first letter states:


2nd July 1996.

Dear Minister,

Further to my letter dated the 29th of July 1995 I repeat my request to be relieved of my duties relating to the Special Criminal Court.

I do not wish to create a shortage of serving members and therefore if required I will be available during the coming Vacation.

Yours sincerely,

Dominic Lynch.

The Minister for Justice,

72/76 St. Stephen's Green,

Dublin 2.

The second letter states:


Re: Special Criminal Court.

Dear Minister,

It has occurred to me that my letter of the 2nd of July 1996 (copy enclosed) which I posted that day has not reached you as I have not received a reply.

I shall be very much obliged if you will let me know what the future holds for me regarding the above.

Yours sincerely,

Dominic Lynch.

The Minister for Justice,

72/76 St. Stephen's Green,

Dublin 2, undated.

Personal to whom?

Personal to whom?

Attached to that was a copy of the letter of 2 July. Judge Lynch's letter of yesterday states:


11th November 1996.

Re: The Special Criminal Court

Dear Minister,

Thank you for your telephone call to my home on Friday morning the 8th instant in the course of which I mentioned my last letter to you which you said was undated.

In the earnest hope that the following information will be of assistance it was posted by me in an envelope which was marked Personal and addressed to you on the afternoon of the 10th of October 1996.

Yours sincerely,

Dominic Lynch

The Minister for Justice,

72/76 St. Stephens Green,

Dublin 2.

Who reads the Minister's personal letters?

Who takes the Minister's personal letters?

I thank Judge Dominic Lynch for agreeing to allow me make those letters public, as they were personal letters.

AG letters.

The Minister did not need his permission to read them.

Lest there be any doubt, I will make it clear again that I accept full political accountability for what occurred.

It was a cock up.

It is a matter for the House — and, ultimately, the people — to arrive at their conclusions but, equally, it is only right that I should ask the House to deal with this matter in a fair and measured way, to wait until all the facts are available and to view them in their proper context.

I assure the House that as soon as doubt was raised with me through a letter I received from the Attorney General on 5 November 1996, I immediately took action. As soon as I was informed on Wednesday evening, 6 November, between 10.15 p.m. and 10.30 p.m., I ordered the release of the relevant people and the independent inquiry that I announced in the Dáil last Thursday, 7 November. The key issues in this inquiry are to establish precisely what happened and — of great importance — to recommend whatever steps are necessary to ensure a mistake of this nature and gravity does not occur again. I must let that inquiry take its course.

We have heard and, I am sure, will continue to hear of misdeeds and transgressions of my predecessors and former Ministers now on the other side of the House. For my part, I am determined that the Dáil and the public should get all the facts when they have been fully established. Surely nobody can seriously argue that setting up an independent inquiry is consistent with an intention to cover up or mislead. What kind of reasoning process would persuade people they should cover up something in the knowledge that an independent investigation would certainly reveal it? The departmental files containing all the records on this matter have been handed over to the inquiry team.

None of my predecessors in the Department of Justice has ever taken such steps to ensure that the facts about a matter on which the Department was at fault were examined thoroughly completely independently of the Department.

I doubt if any of my predecessors will try to claim this is the first time in its history a serious error has been made by the Department. I doubt if anybody who has served as a Minister in any Department will claim there is a Department which has never erred.

Before I came to the Dáil last Thursday, I had arranged to set up an inquiry into these events. This inquiry by Mr. Sean Cromien and Dr. Edmund Molloy has started and I have asked for a report to be submitted to me by Monday next, 18 November. Natural justice demands that all who had any part to play in the matter are given the fullest opportunity to explain their role in how a Government decision relieving Judge Lynch of his duties on the Special Criminal Court was not conveyed directly to him and he continued to serve in the court. When this investigation is complete, the Dáil and the people will have an opportunity to make a balanced judgment on the matter.

I have already briefly indicated that I have been able to establish further information since last Thursday. To be perfectly clear, at about 4.30 p.m. on Wednesday last, 6 November, a principal officer in my Department received a telephone call from the office of the DPP asking for clarification on Judge Lynch's position. At that stage, the matter had already been under investigation in the Department as a result of my initiative on the previous day, 5 November, when I received a letter from the Attorney General.

Media queries during Saturday alerted me to the possible existence of a telephone call or calls from someone to the Department. I asked for information on this possibility and between approximately 6.30 p.m. to 7.00 p.m. I was informed about the DPP's call. A statement was immediately issued by the Department of Justice confirming that a telephone call had been made.

This morning, Tuesday, 12 November, I was informed that a junior official in the Department also received a telephone call from the Registrar of the Special Criminal Court about the matter on Tuesday evening last, 5 November. This call also took place subsequent to my intervention on that same day. I am not aware of any further contacts with the Department on the matter but — I state this clearly — there may well be more information as people make their statements to the inquiry. It will have to be left to the inquiry to ascertain the full facts.

Will the Minister give way?

At this stage of her speech I may ask her if she wishes to give way for an intervention.

I have very limited time.

On a point of information——

She is refusing to adhere to a parliamentary procedure.

So much for the new procedure.

I have asked the Minister and she has declined. That is her prerogative.

It was the Government that introduced the procedure.

I would like to clarify the present composition of the Special Criminal Court. Prior to 1 August of this year there were nine judges on the court. On 1 August the Government, on my recommendation and at his request, terminated the appointment of Judge Dominic Lynch as a member of that court. On 1 August also the Government appointed Judge Kevin Haugh as a member of the court. Judge Haugh was to replace Judge Lynch. On 6 September the warrant appointing Judge Haugh to the Special Criminal Court was sent to the Dublin County Registrar. Separately, but in relation to the Special Criminal Court, on 27 August Judge Gerard Buchanan retired from the Bench. I am advised he still is a member of the Special Criminal Court and the procedures for his replacement are in train. My Department is in the process of preparing a Government memorandum. The papers for this new appointment were already in preparation before the events of last week.

For two years now, I have listened to claims from both parties opposite about how effective they are in opposition dealing with the crime problem. If by "effective" they mean attempting to exploit the type of difficulties that arise in criminal justice systems everywhere to their advantage, they may have a point. Most people, however, would consider it more convincing if they could speak instead about what they did while in Government to deal with the crime problem.

Many Members have said the Ministry for Justice is a poisoned chalice, a crisis management Department, the bad news Department, the place where one's reputation can only be damaged and never made. Public criticism goes with the job, not just criticism of the incumbent's job but also of the Department. It is a fact that in every State the Justice or Home Affairs Ministry constantly deals with matters of utmost seriousness at short notice. Almost by necessity that Ministry is at the heart of crises.

The officials of the Department work under extraordinary pressure and I can say from my experience many of them work way above and beyond the call of duty. I was glad to note that Deputy Ray Burke, who had his experience of crisis in the Justice Department, made exactly the same point on television last Sunday evening.

He did not make a mess of it. He accepted his responsibilities.

It is worth noting that 12 of our EU partners have two Ministers with two Departments dealing with Justice and Home Affairs separately.

We will give the Minister only one.

In addition to the normal Justice and Home Affairs matters, our Department of Justice has a major role to play in matters relating to Northern Ireland. In recent years, this role has widened and the workload at a very senior level has increased enormously. My involvement in the latter, as Deputies will know, has been very substantial.

I became Minister for Justice on 15 December 1994. It became apparent to me fairly quickly that there had been little or no root and branch reform of the criminal justice system for many decades. The system was lurching from one crisis to the next.

The Minister contributed to that tenfold.

My objective has, been, and continues to be, to reform our criminal justice system in all its facets — to reduce crime, detect a higher percentage of offenders, have the resources to put them away, have laws that have regard for the victim and potential victim and, generally, have the expertise, personnel, technology and management to tackle today's criminal. This necessary process — neglected for so long — is under way. It is recognised that significant reforming steps have been taken during the past two years with the Garda Síochána, the prisons and the courts.

The much debated matter of our bail laws had been kicked to touch by many Governments. We should examine who has been in Government for the past 30 years, since the O'Callaghan case. Within months of becoming Minister I made my view known and now, in just over two weeks, the people will have an opportunity to make the necessary change to our Constitution. We treasure the right to liberty, but the Government believes we should no longer have the system that prevails — the most liberal regime in Europe.

Our prisons have long been under appalling strain. Between 1989 and 1993 — a time when both Opposition parties were in Government — not a single extra prison place was provided. In 1993, 57 additional places were provided in Mountjoy. Since then, no extra places were provided until I became Minister for Justice in December 1994 and started a programme of providing phased in extra prison spaces. In this year alone, an additional 164 extra places will be provided, including the Curragh and Castlerea. This is treble the 57 places provided in the five years before this Government took office.

By next January construction will have begun on the Castlerea main prison, which will provide 125 places, and shortly after the Mountjoy women's prison, which will provide 60 places. Some 55 extra places will come on stream from a new wing at Limerick prison within a year. In addition, planning is already under way on a new remand prison at Wheatfield. This will provide 400 places which are of particular relevance in relation to bail reform. We cannot rest on our laurels after this work on prison places. There must be constant reassessment of the requirements. Otherwise, we will end up back where we were before I came to the job.

This long-overdue work on our prisons is not the work of this Minister alone. It has depended on the Minister for Finance making resources available and other Ministers recognising the priority that the fight against crime demands.

The Minister must keep the Tánaiste and the Minister for Social Welfare happy.

This Government, more than any other, has been prepared to set aside the resources necessary for the ongoing struggle against crime and, thereby, has shown its bona fides on this crucial fight. It is disgraceful that matters were allowed to drift until I became Minister. I want to go further with reform. Deputies will be aware that the Government has decided to establish an independent prisons board or agency. This is long overdue. In 1985 the Whitaker Report recommended such an agency but nothing happened since then. I have been advancing work on this agency since taking office and that is why the Government is now ready to announce its establishment. It is not a panic measure.

It took this crisis to make that announcement.

Many times I have outlined my actions in the fight against drugs and I will continue my efforts.

This Government wants to see lasting improvements in the courts. During my first year as Minister, I appointed a working group headed by Mrs. Justice Susan Denham to take a fresh look at the way the courts operate. In May 1996 the Government approved an independent courts service in principle and today the Government took a further decision to advance this new service. I commend Mrs. Justice Susan Denham and the working group for the speed with which they have advanced this work. Another report is due shortly.

Revitalisation of the Garda has taken place through regionalisation, additional numbers, new technology, new laws, the proposed aerial wing and extra resources. This Government has shown it recognises that the problems of crime are not only ones for the Department of Justice. A budget that focuses on tackling long-term unemployment and social inclusion is an anti-crime budget. An education policy that works to include all and divert funds to the disadvantaged is an anti-crime education policy. A health policy that reaches out to inform young people about drugs is an anti-crime health policy. A housing policy that has humanity is an anti-crime housing policy.

There have been years of neglect. I came to the Department with all the energy I could muster to turn around the damage done by years of inertia. I defy anyone in this House to deny that the most far-reaching reforms in our criminal justice system for years have been undertaken over the past 23 months.

The Minister has moved from crisis to crisis.

I have already indicated that the first crime strategy document is currently being prepared in my Department. There has never been one, although Opposition Deputies have called for it. Furthermore, I have already announced my intention to establish a crime council to facilitate broadly based and well informed discussions on crime issues as an aid to policy formulation.

The Minister should put a few prisoners on it.

Proposals are being worked on with interested parties and I hope to be in a position to make an announcement shortly.

Tackling crime requires the ultimate co-operation between every facet of Irish society. However, little reform has been completed or even contemplated for too long. We owe it to ourselves to reverse this tide, to give ourselves the laws and resources necessary to combat modern crime.

The Minister is going out with the tide.

We owe it to the next generation to give it a criminal justice system, with lasting structures to provide adequate education, health and welfare, that will go some way towards addressing the deeper causes of criminal behaviour and marginalisation. This process, started recently, must continue. I have a responsibility to resolutely ensure that the work gets under way and the future work planned will be seen through.

The fair-minded people to whom we are all responsible will ask some questions at the conclusion of this debate. Which is more responsible — for a Minister to quickly bring the truth to public attention through an independent inquiry and to act on the results of the inquiry, or to abandon ship on the basis of politically motivated accusations, thereby abandoning also a programme of reform which is fundamental and crucial to the effective functioning and future development of all of the justice institutions?

Only the Minister can do it.

A serious mistake has been made in my Department. Steps need to be taken to ensure it does not or cannot happen again. However, the Opposition's transparent attempt to drag all and sundry into its blame game in the hope that it will sweep to power——

Not again.

——does not, in my view, impress the people we represent collectively. It is time to show judgment and a sense of proportion. It is time to get back to work.

Where is the Labour Party?

When the Government assembled on 1 August last the agenda was not an ordinary one. That day it was to deal with a matter of particular constitutional significance — a request from a judge, who has served this State well both as a member of the Circuit Court and the Special Criminal Court, to be relieved of his duties as a judge of the Special Criminal Court. It was, given his years of distinguished service and his case load in the Circuit Court, a reasonable request. However, it was more than a mere administrative decision. It was a decision which, by law, could be made by the Government only.

Section 39(2) of the Offences Against the State Act, 1939, provides that each member of a Special Criminal Court shall be appointed and be removable at will by the Government. The reason the membership of the Special Criminal Court is considered to be sufficiently important to warrant a decision by the Government is to be found in the nature of that court. It is, by virtue of Article 38.3.1 of the Constitution, entitled to deal only with cases where it may be determined "that the ordinary courts are inadequate to secure the effective administration of justice, and the preservation of public peace and order". On 1 August last the Government met to consider a matter which it knew had consequences for the effective administration of justice and the preservation of public peace and order in this State. It is scarcely possible to imagine any Government meeting to deal with a more important matter.

On 16 May 1974 a distinguished jurist and lawyer, speaking at Trinity College Dublin about the Special Criminal Court, said:

It is a precondition to the establishment of special courts that the ordinary courts are found to be inadequate. In other words, their existence testifies to the existence of extraordinary circumstances in this State during a particular period. It is vital to maintain a strict scrutiny of such circumstances — which justify departing from the norm — to analyse the way in which special courts can be introduced to cope with such circumstances, and to keep under constant review the day to day functioning of these special courts.

The topic of that lecture was considered so serious that the lecturer sought and received the advice and assistance of the then Attorney General, Mr. Declan Costello, Senior Counsel. The lecturer, who was then Reid Professor of Criminal Law, subsequently went on to bring great distinction to this country as a Senior Counsel and now as President.

I believe the assessment President Robinson made in 1974 was correct. I, too, believe it is vital to keep under constant review the day to day functioning of the Special Criminal Court. What President Robinson identified as being vital was not done, in this instance, by the Minister for Justice, the Attorney General, the Taoiseach or any member of Government.

This debate is about the consequences of incompetence and failure and political responsibility or lack of it. It is a debate about that word, which has suddenly become unfashionable with this Government, "accountability". This is a debate about political accountability on the part of the Minister for Justice for her failure to properly implement a Government decision, on the part of the Attorney General, for his personal failure to act or adequately advise when action and advice was needed and on the part of the Taoiseach as the political master of the Attorney General. It is a debate about accountability in the context of a decision accepted by everybody involved as having consequences for the effective administration of justice and the preservation of public peace and order.

The individual responsibility of Ministers in Government with regard to their Departments is established by statute, pursuant to Article 28.12 of the Constitution. The Ministers and Secretaries Act, 1924, as amended, provides that: "...every such Minister shall be the responsible head of the Department or Departments under his charge and shall be individually responsible to Dáil Éireann alone for the administration of the Department or Departments of which he is the head." It is of great significance that the Minister is by law held to be individually responsible to Dáil Éireann for the administration of the Department under his control. It is equally of significance to note where responsibility lies when one Minister is authorised to carry out the functions of another. Section 11 of the 1924 Act permits delegation of this nature, "without relieving such other Minister of his responsibility for the administration of such public service". It is crystal clear that the law requires a Minister to be responsible for the administration of his or her Department, even in circumstances where some other person performed or neglected to perform the act in question. In this instance the Minister for Justice acknowledged maladministration in her Department. I invite her to do no more than obey the law and take the necessary individual responsibility for the administration of her Department.

Shortly after the Government was formed the then Minister of State at the Department of Finance resigned from office because a junior official in his office had prematurely faxed details of the budget to the media. He did not direct this breach of proper procedures nor did he know of the breach until after it had occurred. He resigned. He did so because the law required him to take individual responsibility for the administration of his Department. Why does the law not apply to the Minister for Justice? Who granted her immunity from accountability? The answer, of course, is that the law does apply to the Minister for Justice, but she is not prepared to act in an honourable and accountable fashion. She is prepared to cling grimly to the wreckage in the deluded belief that the Taoiseach did not have his tongue firmly in his cheek when he proclaimed her to be "the best Minister for Justice we have had in years".

She is too.

The people of Ireland cannot take much more success of this nature. What the Tánaiste whispered furtively to journalists in the summer of 1995 is now being spoken openly in the corridors of this building. It is time to go. The Minister for Justice has become an embarrassment. Whatever the opposite to the Midas-touch is, she has it. Each succeeding month of her ministry has brought new embarrassment.

Let me add to her embarrassment. The flagship achievement of the Minister's period in office has been her appointment of new judges. She has triumphantly proclaimed the slashing of court waiting lists as proof of her competence and capability. On 1 October 1995 there were 51 murder and rape cases awaiting trial before the Central Criminal Court. The Minister then announced her initiative. She appointed new judges and arranged for special sittings last September. On 1 October 1996 — after the new judges had been appointed and the special sittings had taken place — there were 65 cases of murder and rape awaiting trial before the Central Criminal Court.

Great progress.

The backlog is up by close to 30 per cent — yet another achievement for the Minister for Justice. That is what the Minister calls progress. Who will take responsibility for the increased length of time victims of rape and the families of murder victims have to endure while awaiting trial? Certainly not the Minister. She seeks to share in the success of gardaí when they uncover drug caches. She can be found peering at cameras over bags of white powder. With hindsight would she not have been better staying in her office and reading her post?

How much hard earned taxpayers' money did the Minister spend to cultivate the public image she now has? The litany of disasters over which she has presided since she took office is, to say the least, most impressive. She started, as she clearly intended to continue, by delaying the introduction of the money laundering provisions of the Criminal Justice Act, 1994 by in excess of 100 days in the immediate aftermath of the Brinks-Allied raid. At the time the greatest money laundering operation in the history of the State was under way, the Minister failed to sign the necessary order giving those provisions, which had been put in place by Fianna Fáil, the force of law.

Not true.

As an encore, she went on the "Farrell" programme and announced an impromptu bail referendum, which was cancelled by the Tánaiste before the Minister could read the laudatory headlines. Thereafter she presided over the greatest legislative drought the Department of Justice ever experienced. At a time of escalating crime she failed to introduce a single anti-crime Bill. This was the era of the ostrich in the Department of Justice. The Minister's head was firmly in the sand and the official line was that crime was at an acceptable level and no new measures were needed. So prevalent was the belief among members of the Government that crime was not a problem that they cancelled the prisons building programme put in place by the previous Fianna Fáil-led administration. The Minister was publicly humiliated by the cancellation of her principal projects in her absence. The Taoiseach denied she had threatened to resign — with hindsight it would have been better if she had.

The Minister then initiated the Paul Daniels phase of her ministry and the report of the Law Reform Commission, which had been sent to the Government in August, mysteriously appeared on the eve of the Dáil debate on the Second Stage of the Fifteenth Amendment to the Constitution (No. 1) Bill, 1995 introduced by Fianna Fáil, which provided for a bail referendum. This, in turn, yielded to the Xerox phase of her administration when she managed to produce and introduce poor quality copies of Bills which had already been published by Fianna Fáil. This phase was interrupted by the terrible events of last summer which left the Minister bereft of inspiration or direction. In desperation for guidance she accepted the proceeds of crime Bill introduced by Fianna Fáil. Even then, three short months ago, few people realised what little grasp the Minister had of her portfolio. The events of recent days have shown the Minister in her true light. Not alone is she not in charge of her own Department, she is not even in charge of her own private office. She enjoys the trappings but not the substance of power.

However ill-informed the Minister might have been she heaped insult upon injury last Thursday when she came to this House and made a statement in which she made no reference to the letter in early October from Judge Dominic Lynch to her. When she spoke to this House she knew of that letter and made a deliberate choice not to mention it. Being a clever Dick may well appeal to the Taoiseach who has pioneered the "you did not ask the right question" category of disclosure, but it will not appeal to others in this House. I invite the Minister to do no more than to judge herself by the standards of openness and transparency by which she judges others. I also invite her to adjudicate her performance by the criteria of openness, transparency and accountability. The only conclusion to which any honest appraisal can lead is that her performance was unacceptably shabby.

The Minister may chose to ignore the requirements of the Ministers and Secretaries Act. She may decline to apply the law to herself. She may chose to continue to profess that it is politically acceptable for a Minister not to know what is going on in her private office, but no official made her come to this House and conceal the existence of the letter of early October. She made that decision herself. She embarked on the route of half truth and was found out. If she is not prepared to take responsibility for administrative omissions in her Department, will she at least take responsibility for her own omissions in this House? It is over, she has to go, decency demands it, but she should not go alone as others are equally to blame.

The Taoiseach made an incorrect statement regarding the role of the Attorney General. He said that clients, once advised, are normally responsible for action to be taken on foot of advice given by a professional adviser and that the Attorney General acts in that capacity vis-ávis Government Departments. He also said that the Attorney General has no responsibility in the matter of implementing Government decisions. He is wrong, the Constitution gives the Attorney General two separate and distinct legal functions. He is both legal adviser to the Government and guardian of the public interest. It gives me no pleasure to say that, in this instance, the Attorney General, Mr. Dermot Gleeson, senior counsel has failed to discharge either function adequately.

The late Mr. Justice Niall McCarthy, commenting on the role of the Attorney General as guardian of the public interest in the case of Attorney General v. Hamilton, 1993 Irish Reports, page 266, stated: “Independence of function in this context has its duties as well as its rights”. The Attorney General, in his capacity as guardian of the public interest, had a duty to act when he became aware there was an impression among the Judiciary that Judge Lynch was still a member of the Special Criminal Court. He did not discharge that duty when he decided to communicate with the Minister in a manner more suited to estranged pen pals than ordinary human beings. He had a further duty to act when he received no reply. He must have been aware of the speed with which the Minister had responded to previous crises. The Minister waited for over 100 days after the Brink's-Allied raid before she signed the necessary order bringing the money laundering provisions of the Criminal Justice Act, 1994, into law. He had a duty to follow up on his request for clarification but failed to discharge it.

The Attorney General is well aware that the question of the correct composition of the Special Criminal Court can and has given rise to litigation. Twice in the past 14 years this issue has come before the High Court and the Supreme Court. In Gallagher v. Governor of Portlaoise Prison, High Court, unreported, 27 July 1983, and McGlinchey v. Governor of Portlaoise Prison, 1988, Irish Reports, unsuccessful challenges were mounted against decisions of the Special Criminal Court on the grounds that it had been improperly constituted. The Attorney General must have been well aware of the consequences of a person sitting as a judge in a court where he is not entitled to sit as he appeared for the applicant in the leading Irish case of this nature, the State Walshe v. Murphy, 1981 Irish Reports, page 275.

To suggest that a request for clarification discharged that duty is dishonest. There was nothing which needed to be clarified. The Attorney General was aware that the Government had decided on 1 August to remove Judge Lynch as a judge of the Special Criminal Court. He was aware since late September of the impression among the Judiciary that Judge Lynch was still a member of that court and that if Judge Lynch sat as a member having been removed by the Government it would give rise to legal difficulties. Despite this he took no effective step to avoid the calamity.

Who is responsible for this error? The Attorney General is responsible. He does not have the luxury of being able to seek to hide behind the inadvertence of any group of nameless officials. He and he alone made the error. His predecessor as Attorney General, Mr. Harry Whelehan, senior counsel, relinquished his position as President of the High Court over demands that he be held responsible for a delay in dealing with extradition papers which everyone agreed had not been brought to his attention. He did not know and did not act. Mr. Gleeson knew and did not act. Which of them is the more culpable?

The fine upstanding moralists in the Labour Party went looking for Mr. Whelehan's head. They said it was not personal but that the Attorney General had to be answerable for what happened in his office, even if he did not know what had happened. On this occasion the Attorney General not alone knew what was done in his office, he personally did it. The high moral head hunters of the Labour Party have been placed in a dilemma. They have been forced to choose between principle and preservation and have made the choice most suited to themselves. When the Labour Party has a battle with its conscience, it always abandons it.

At least we have one.

It will be judged by the electorate in the light of the standards it finds acceptable.

I wish to pose some extremely serious questions to the Minister. Why did she not get the letter of the Attorney General of 2 October but did get his letter of 1 November? How did she get the letter of Judge Dominic Lynch of 2 July but did not get his letter of 10 October? Why will she not immediately publish all the correspondence from the Attorney General about this serious matter? Will the Minister and the Attorney General tell the House whether they failed to tell the Taoiseach about this serious constitutional crisis throughout October and into November?

The days of high standards and people like Deputy Gerard Collins are over. There are unprincipled chameleons in charge of the State who change the rules and principles as they go along. On 22 November 1994 the Taoiseach said in the House:

We have to find the people a Government they will believe in, a Government they can trust and, above all, a Government of truth. Without truth there is no foundation for good government. Ministers must not conceal the truth from the Dáil nor must they conceal it from each other.

Last Thursday the Minister concealed the truth from the Dáil, the people's Parliament. How does the Taoiseach reconcile that with what he said in November 1994?

The Tánaiste said:

This is the correct and appropriate place for those who hold public office and are responsible for decisions of public concern to account for their actions and omissions. The key issue throughout this entire episode has been accountability, the right of the public to secure adequate explanations and the responsibility of the holders of high office to take responsibility for their actions.

I ask the Minister, the Attorney General and all others involved in this sordid affair to take responsibility for their actions. This is no laughing matter, it is a matter which goes to the foundations of the democratic institutions of the State. If the Minister and the Attorney General stay in office, let us abandon all pretence of parliamentary accountability. It appears that with this Government what is everybody's business is nobody's business. Is it too much to ask it to enforce openness, transparency and accountability which it trumpeted to the people prior to coming to office?

The Deputy's party never knew they existed.

It is a sham. Self-serving careerists.

The Government has the full confidence and support of the House. In the past two years it has made significant progress in the economy and areas of social policy, including education, health and crime prevention. It has been a busy two years of solid work and achievement.

I add my support and backing to my colleague, the Minister for Justice, Deputy Nora Owen, a friend and ally in Government. She has been a supportive member of Government and shown an interest in and commitment to all areas of Government policy, including my own work in the Department of Education.

The Minister inherited a serious and escalating crime problem. With the active co-operation of her colleagues in Government, she has tackled it effectively. I have had the opportunity to work with her on the anti-drugs task force. As a result of this work and co-operation, I will be in a position shortly to launch a major new anti-drugs campaign targeted at all primary schools. Co-operation and participation of the wider school communities will be the key to the programme's successful implementation.

The Minister has faced this difficult challenge in her usual honest and fortright way. She has admitted publicly that the systems of communication in her Department have failed and has responded swiftly by setting up an independent inquiry into the sequence of events surrounding the Government decision to remove Judge Lynch, at his own request, from the Special Criminal Court.

This House will have to wait for the inquiry to be completed, until all the relevant information becomes available. It would be unwise of Members to rush to judgment before seeing all the relevant facts, which will be put before the House. The Minister in her statement last week committed herself to returning to the House on completion of the inquiry and she is prepared to respond to further questions on every aspect of the matter. I welcome the major changes announced by the Taoiseach today on how our courts and prisons are to be administered.

I can assert to this House absolute confidence in the Government, which has truly been a Government of renewal. Two years ago the Government made commitments to the people on reform, progress, targeting the employment needs of all our people and enhancing our social and economic life. Our policies were outlined in the policy agreement, a Government of Renewal, an agreement between Fine Gael, the Labour Party and Democratic Left. We have focused on these policies, have worked for them and have achieved significant progress in the past two years.

As Minister charged with implementing the educational provisions of the programme, A Government of Renewal, I am ever more conscious that education has a central role to play in improving the life chances of young people today. Our education system is a success. It is the key to a dynamic economy. It is essential for increased employment and is needed for the holistic development of our young people.

Our policies are succeeding. Students staying on to leaving certificate represent more than 80 per cent, well on target for 90 per cent by the year 2000. Thousands of additional students have gone on to third level studies, a progress which is assisted by the dramatic abolition of fees by the Government, a policy objective which was stated by previous Governments but achieved by this one. We have reformed the curriculum at first and second levels. We have developed new courses at leaving certificate to meet the needs of a growing and dynamic economy. The leaving certificate applied programme is flourishing and the leaving certificate vocational programme has been improved and expanded. In the traditional leaving certificate we are engaged in steady reform of each subject to meet the needs of today.

The financial and fiscal policies which have been developed by my colleague the Minister for Finance, Deputy Quinn, have led to a declining debt burden, low inflation, low interest rates and a range of tax incentives to encourage employment. My colleagues in the Department of Enterprise and Employment, Deputies Richard Bruton and Rabbitte, have promoted new business, provided retraining and operated dynamic and successful programmes to increase employment. The success or failure of these policies depends on a highly skilled, flexible and adaptable workforce ready to respond to changes throughout their lives. It depends on high skills being available to all. It depends on the investment which we, as a people, make in education.

The facts are striking. The OECD calculates that in 1992, 70 per cent of the unemployed had left school before completion of the senior cycle. On the other hand, the World Competitiveness Report, 1995, shows that of 48 countries surveyed Ireland's education system ranks second, after Singapore, in meeting the needs of a competitive economy. In the past two years the Government has sustained a planned and targeted investment in our greatest resource, our people. Investment in education has increased by more than £100 million in the lifetime of this Government. This investment has been targeted wisely and well throughout our education system, at primary level, second level, third level and in adult and continuing education to promote lifelong learning.

At primary level we increased the capitation grant last year and again this year. We targeted capitation support on disadvantaged schools. We expanded the Early Start project to give a good foundation to a child's education, to help prevent early drop out from school, combat school failure, enhance later employment prospects and improve life chances. Recently I launched a programme called "Breaking the Cycle of Disadvantage". Thirty-three urban schools and 118 rural schools will be involved in the programme.

The pupil-teacher ratio in urban schools will be 15 pupils to one. This is a dramatic change. The research presented to me by the Combat Poverty Agency of the Education Research Centre proved that unless the pupil-teacher ratio was as low as 15:1 no real change would take place. This is for the long haul, to enable children to stay at school longer and enhance their life chances by preventing them becoming the new long-term unemployed. These 33 schools will receive increased grants for projects and equipment and there will be special in-service training for all the teachers involved. The effects of these new plans will be carefully evaluated. The schools are being invited to develop a five year plan so that there will be real innovative and dynamic teaching and learning in these schools. Rural schools will be in clusters of 25 and each cluster will have a specially trained co-ordinator of the project.

Both Early Start and Breaking the Cycle will rely heavily on partnerships between home and school. The reason I have increased the number of home-school links teachers is to help this partnership. Parents are now part of the life of every primary school and when the Education Bill is introduced parents will have statutory rights in the development of the curriculum and management of the schools.

At second level we increased capitation grants last year and again this year. We launched a huge in-career development programme so that teachers can respond to the challenge of change. We have enormously expanded the number of students who take the transition year, a year which ensures they are better prepared for work and life. Major developments are under way in the second level curriculum. Revised syllabuses are being introduced in phases and in-career training and development for teachers of each subject is taking place.

The leaving certificate applied programme, a two-year programme aimed at preparing students for adult and working life, has been introduced in 130 schools for more than 3,000 pupils this year and will expand next year. A restructured leaving certificate vocational programme with a strong vocational dimension is being introduced on a phased basis. This year 11,000 students will avail of the leaving certificate vocational programme. In addition, more than 550 schools will offer the transition year to 28,000 students this year. Civics, social and political education will commence in 300 schools this September and will be part of the core curriculum. Relationships and sexuality education is being developed and an agreed school policy and suitable programme will be in place in all schools during the 1996-97 school year.

At third level, 1996 is the historic year when full time undergraduates will no longer have to pay tuition fees. It is the year when students maintenance grants have again been increased by double the rate of inflation and when the hardship fund for third level students continues to be available to help students overcome obstacles to continue in their studies.

This Government has also recognised education as a vital echelon in improving employment prospects throughout a person's life. This Government has provided for additional resources for adult education, the vocational training opportunities scheme and Youthreach places. This Government has targeted resources on adult literacy and on second chance education for disadvantaged adults.

This record of achievement is in stark contrast to the lack of policy, direction and focus on educational issues which we see on the Opposition benches. Fianna Fáil promises much but fails to deliver. Fianna Fáil promised free third level education in 1992 but this Government delivered it. Fianna Fáil promised a White Paper on Education but this Government delivered it. Fianna Fáil promised education legislation but this Government will deliver it.

The lack of coherent policy from Opposition speakers is matched only by their lack of commitment to education when they held the responsibility for it. Fianna Fáil is the party which froze capitation grants for schools, savagely cut investment in school buildings and signally failed to deliver on in-career training for teachers. Today, Fianna Fáil is the party committed to every issue but it delivers on none.

This Government delivers. This Government has policies and is committed to education reform. Our education, employment and economic policies are bearing fruit. The economy is growing strongly in 1996. Strong retail sales growth, buoyant construction activity and the strong trend in tax receipts support this view. Gross National Product will grow by at least 6 per cent this year, personal consumption expenditure will increase by about 5 per cent and investment will record a further substantial increase which is expected to be about 9.5 per cent.

Most importantly of all, the policies of this Government are translating into growth in employment. This year the number of people at work will be almost 1.3 million. The number of new jobs created this year will be around 50,000. Contrast this with the 6,000 jobs created as recently as 1992.

The success of this Government in education, enterprise and finance has been reflected in other social areas, such as health, social welfare, the reform of legislation, growth of the arts, planning of the environment, attracting visitors to Ireland as a tourist destination and in promoting and safeguarding the fishing industry.

This has been reflected in the contribution made by my colleague, the Minister for Justice, Deputy Nora Owen, to creating a society where justice is done and seen to be done. The citizen can rely on the law and the vulnerable in society are protected from attack and crime. Deputy Nora Owen has introduced more reforms to the justice system than any Minister in recent times. She has worked incessantly on a comprehensive package of measures to ensure that the twin evils of lawlessness and drug abuse are combated at every level. With the full support of her colleagues in Government, she has progressed an unprecedented range of measures to ensure the safety of all citizens.

I am proud of the record of this Government. I stand over my record in implementing the education commitments of the programme for renewal and I stand over the record of each and every member of this Government which has provided strong, united and confident leadership to the people over the last two years. I commend this motion of confidence to the House.

The ability of Deputies on all sides of this House to live in a world of their own never ceases to amaze me. This unique common denominator manifests itself greatly when one is in Government. I do not for a moment suggest that Fianna Fáil or I have not been subject to this phenomena in our time but this bubble of government in which we live means that we seem to lose all consciousness of what goes on in the outside world, what ordinary people think about and how they assess things.

This phenomena is exacerbated on many occasions by politicians meeting the same media people day in day out in the same hothouse atmosphere of Dáil Éireann. We end up speaking to each other and we think that is where the world begins and ends. This is particularly true when one is in Government because one is cocooned to a greater extent.

An example of that today, if one needed an example, is that someone must have come to the Taoiseach with the idea this would be a wonderful occasion on which to announce some changes relating to the Department of Justice. It is not that some of these commitments should not have been announced at some date or that they should have been brought forward by many Governments, but somebody came up with the idea that this would be a great way to announce them because it would take the heat off the Minister. That same genius thought it would be a great idea to announce the Taoiseach's third recommendation, where he has given my former colleague, Deputy Ruairí Quinn, responsibility for tracking ministerial correspondence, during this motion of confidence proves beyond all else that we live in such a cocoon. I am sure Deputies, and particularly Government Deputies, believe this was a wonderful idea and that this is the way we should progress.

The same can be said about the inquiry announced by the Minister last week. It is not that the people charged with the inquiry will not do a good job but they will do a job relating to administration because there lies their expertise. Irrespective of the outcome, the inquiry cannot relieve the Minister of her responsibility.

I am often amazed at how little people think of politicians. One of the reasons for this is we all say one thing when we are in Opposition and do exactly the opposite in Government. Is it any wonder the public is so cynical. We have all been equally guilty of this malaise over a long period of years.

Other speakers to this motion will refer to many fine quotations from debates in this House in the dying months of 1994. The people who said those things in 1994 are now in Government saying the opposite. We will wonder in a few months time why people are cynical and think so little of politicians.

I can think of no finer travelling companion and friend than the Minister for Justice, Deputy Nora Owen. She is affable, good-humoured and undoubtedly hardworking but her job is Minister for Justice and not friend of mine.

I do not know which job would be more difficult.

I am afraid the Minister's conduct of her office in this particular matter leaves much to be desired. She said a number of things during the course of her address last Thursday but it is quite obvious from her speech that there were some changes. She stated yesterday that Judge Dominic Lynch had subsequently written a letter to which she did not refer on Thursday last because it was not dated. From reading the letter, outlined earlier by the Minister, it is obvious that it was written after 2 July because the judge refers to his letter of that date. One would not need to be Einstein or Sherlock Holmes to realise that the undated letter was received after 2 July. Last Thursday the Minister also gave the impression that action was taken by the Department of Justice as a result of a letter received from the Attorney General, dated Friday, 1 November, which was not received, for some miraculous reason, until Tuesday, 5 November.

I understand that in late September an eminent senior counsel learnt that Judge Lynch had been removed from the Special Criminal Court but was still sitting as a member of that court. The individual in question contacted the Department of Justice and the Office of the Attorney General in early October. I also believe that on Tuesday, 5 November, the same eminent senior counsel again contacted the Department of Justice and threatened to go public unless action was taken. He also contacted the office of the Director of Public Prosecutions. Deputy Harney and others have inquired whether this occurred but a reply has not been forthcoming. The eminent counsel to whom I referred is Mr. Barry White, a very well known defence attorney, who contacted the Department of Justice and the DPP on the occasions to which I referred. It was only when Mr. White contacted the Department last week and stated that he intended to go public on the matter that action was taken.

The Minister stated that an assistant secretary not in the courts division dealt with the matter on Wednesday last. When did the DPP contact the Department of Justice and why did the Minister not refer to such contact on Thursday last? I must inform the Minister that, during the past number of weeks, this matter was discussed by officials in her Department. Questions were posed as to what action should be taken. I am not connected to the Department of Justice but those events occurred. The Minister indicated that the registrar of the Special Criminal Court was in contact with the Department of Justice a number of weeks ago. However, this information was not provided on Thursday last. Why was an Assistant Secretary not in the courts division responsible for raising the alarm and taking action? This action did not, as the Minister implied in her speech last Thursday, result from telephone calls she made on Tuesday on foot of the letter she received from the Attorney General, Mr. Gleeson.

With regard to the Special Criminal Court and correspondence received by the Minister, I know of no other Minister who would treat, as this Minister has done, correspondence received from the Attorney General in such a flippant manner. In any Department in which I served, letters from the Attorney General or the Taoiseach are brought to the Minister's immediate attention. If one were on top of a mountain in the Himalayas, the private secretary would bring such a letter to one's attention by telephone or fax message. While in Government I visited many parts of the world on trade missions and any correspondence from the Attorney General or the Taoiseach was related to me immediately. The term of office of this Minister for Justice must be the first occasion on which such action was not taken.

This matter does not merely involve Mr. Joe Smith corresponding with the Minister to discover what action she intends to take regarding a parking fine, for example. What impression is given if communications between the Attorney General and the Minister for Justice are not dealt with? Are we to believe that correspondence from the Taoiseach or the Attorney General arrives in the Department of Justice and is put aside until someone is free to deal with it? That is not the way that things are done, as anyone who has served in Government is aware. I suggest that the Minister for Social Welfare, Deputy De Rossa, does not deal with correspondence from the Attorney General or the Taoiseach in that fashion. I know of no Minister whose Department deals with correspondence in such a manner.

I have been asked to believe many things, some of which I can accept. I am willing to accept that, by 2 October, the decision of 1 August may not have impinged on anyone. I believe the letter of 2 October, which stated it had come to the Attorney General's notice that perhaps Justice Lynch had not been removed as a member of the Special Criminal Court, was legitimate. However, I am being further asked to believe, as is implied, that the Attorney General does not know the law. I have known the Attorney General on a personal basis for a long period. If I were faced with going to trial on a charge of murder, I would choose the Attorney General, Mr. Dermot Gleeson, to defend me because I could rely on his knowledge of the law. Am I expected to believe that he does not know the law or that an improperly constituted court is not a serious matter?

This matter was dealt with during the past ten years. As a result of difficulties relating to a judge's age, the Government of the day had to introduce legislation to validate the decisions made by the district justice in question. At least two cases over which he presided were appealed to the Supreme Court which held that it was an inadvertent error and administrative difficulties had occurred. Notwithstanding that the Legislature, on behalf of the people, had legislated to validate the judge's decision, the Supreme Court held that the decisions reached in the two cases were invalid. That illustrates the importance the court attached to the Article in the Constitution which states that courts must be properly constituted. Am I expected to believe that the Attorney General was not aware of this fact?

Having accepted that, am I expected to believe that on Friday, 5 November, the Attorney General again wrote to the Minister for Justice to inform her that there would be legal difficulties if Judge Lynch remained a member of the Special Criminal Court? Am I further expected to believe that, because of the seriousness of the matter, he did not immediately telephone the Department of Justice to ensure that action was taken? For some reason, I am expected to believe that the letter did not reach the Department until the following Tuesday. When I served in Government, letters from other Ministers were delivered to my office by courier. However, I am now expected to believe that the Minister for Justice did not receive the Attorney General's letter until Tuesday and there was no follow up. I am also expected to believe that on 10 October Judge Lynch sent a letter to the Minister for Justice which was not dated and not date stamped.

It was marked "Personal".

Yes. I wish to inform the Minister for Justice about dated and undated letters received by Departments. Civil servants have a notorious habit of stapling letters to envelopes. This is done in some Departments with all letters, whether dated or not. It is done in every Department in the case of undated letters. However, I am now expected to believe that this does not occur in the Department of Justice and the letter in question only came to the Minister's attention before she entered the Dáil on Thursday last.

I am prepared to give the benefit of the doubt to Ministers for many difficulties in which they find themselves, but my credibility is being stretched to its very limit. I am further being asked to believe that the Attorney General and the Minister for Justice, despite the fact that they should be the closest members in the Government, and notwithstanding the fact that they travel weekly to Belfast, do not speak to each other about these particular matters which involve doubts about the composition of the most delicate court in the land, the Special Criminal Court. I find that very difficult to understand. I am prepared to make allowances for certain difficulties that may occur in any Department but it is impossible to believe that this succession of errors occurred and nothing was done about it.

This is a defining moment not only in the history of this Government; the people will decide on these and other matters regardless of whether we shout here all day and all night. They will make their decision on Minister Owen, Deputy McDowell and the rest of us in their own good time. I am prepared to wait until that time, be it next week or next month, because these matters will affect people's judgment when they make their decision. If on this particular issue, however, a Minister, the Taoiseach or the Attorney General is not held responsible and does not suffer the consequences, a Minister in any Government will never again feel obliged to resign. If this occasion passes without somebody taking the blame, a Minister should not be asked by this House in the future to resign.

I cannot envisage any circumstances under which a Minister would feel obliged to resign because the doctrine now being expounded by the Government is what I refer to as the BOG or the Bruton-Owen-Gleeson principle of resignation. The new principle, which will be established if nobody resigns, will read as follows: A Minister is not obliged to resign under the BOG principle because one is not to blame when one does not know; one is not to blame when one does know; one is not responsible for any actions of one's Department at any level; all communications are to be ignored notwithstanding the importance of the contents or the status of the writer; and all modern communications technology is hereby ignored. Those are the principles we will be establishing if somebody does not resign over this matter.

I put this question to the Labour and Democratic Left Members, particularly the Labour Members, and to commentators outside the House: are there to be two standards by which political parties are judged? Will one set of criteria be applied to members of the Fianna Fáil Party——

The Deputy's persecution complex is alive and well.

Carlow-Kilkenny): Let us not have any interruptions. The Deputy is nearly finished.

He certainly is.

——and anybody associated with it? The decisions we make over the next day or two and the consequences of this débâcle will have a lasting import for many years to come. I am quite certain Minister Owen and other Ministers will be in trouble again, but nobody will be asked realistically to resign in the future if somebody is not prepared on this occasion to take the blame.

This is a spurious and opportunistic motion on the part of the Opposition.

Standard issue.

It seeks to inflate an admittedly serious chain of administrative errors or omissions into an attack on the cohesion of the Government and its three most principled members. I would like to dispose of the fiction that the Taoiseach or the Attorney General have any direct role in the implementation of a Government decision to delist Judge Lynch as a member of the Special Criminal Court. Any member of the Opposition parties who has been in Government and any member of those parties who aspires ever to be in Government knows that neither the Taoiseach nor the Attorney General has any functional responsibility in this matter. If they doubt this I refer the Opposition to the Government Procedure Instructions or to any of the major academic texts on the governance of Ireland.

It would be ludicrous to expect the Taoiseach to supervise personally the implementation of every Government decision. If he tried to do so it would be an utterly inefficient use of his time. Is the Attorney General then to be pilloried for stepping outside his formal responsibilities to exercise his sense of collegiality in seeking to alert a Government colleague to a possible sin of omission by her Department?

Sin of omission?

If the Attorney General had not taken any initiative in this matter he would, by the topsy-turvy logic of the Opposition, be blameless. Instead, because he took a proactive approach to resolution of this matter, they deem him to have lost the confidence of the Dáil.

Is that what the Minister calls it, proactive?

If I can invoke a recent historical analogy, we are not talking about inaction on a matter within the Attorney General's direct competence. We are talking about action on a matter outside his direct competence. It is a nonsense to suggest he should be penalised for this. I should have said at the outset that I wish to share my time with Deputy Dukes.

Acting Chairman

Is that agreed? Agreed.

On a point of order, I wish to point out to the Minister that he is not speaking about a no confidence motion and that his prepared script, in attacking the motion, is off the point. It is his own motion he is supporting.

That is an interesting debating point but unfortunately this is a much more serious matter——

The Minister should treat it seriously.

Acting Chairman

The interruptions must cease.

——than college debating.

The Minister did what his whole life is about, a U-turn.

This brings us to the crux of the matter——

He has shown it in the courts.

——an opportunistic attack on Minister Owen. In this instance it is a case of never letting the facts interfere with the rhetoric; never letting the record interfere with the fantasy.

We had plenty of rhetoric from the Minister in 1994.

I want to cite briefly Minister Owen's record as a member of this Government. A wide range of measures to tackle crime and speed up the administration of justice have been set in train. We have more judges at each level of the system, extended sittings in the courts, more efficient use of Garda time and, perhaps most fundamentally, the establishment of the Working Group on the Courts Commission which is involved in a radical overhaul of the operation of the courts.

The Criminal Assets Bureau operates effectively against organised crime and a major programme of prison building is under way which will involve the provision of approximately 800 extra places. This is an unprecedented increase of about one third of the existing accommodation. In the further development of the Government's initiatives in the area of justice, an independent board, the Courts Service, will be set up on a statutory basis with the task of managing a unified court system. In addition, responsibility for the prison service will be transferred from the Department of Justice to an independent, permanent statutory body.

The Opposition parties should be reminded that the bail referendum, for which Deputies O'Donoghue and O'Donnell have been clamouring, will take place in a fortnight's time. However, instead of supporting the Minister concerned and securing passage of the bail reform amendment, the Opposition is focusing on game playing with a decidedly misogynist tinge.

It seems to me that the debate on the Minister's notional shortcomings has been underscored by an implicit inference that the job of Minister for Justice is not for a woman. I remind the Opposition that this woman is intent on resolving the bitter and bloody-minded dispute between rival Garda representative organisations, a complex and difficult task for any Minister for Justice in any Administration.

It is her job.

Let us focus on the Minister's alleged inaction on a Government decision over a two to three month period. When the Government took its decision to delist Mr. Justice Lynch on 1 August of this year, in line with his request, the Minister had every right to expect that a straightforward administrative decision would have been routinely implemented by her Department. This was not done. On three successive occasions the non-implementation of the decision was brought to the attention of the Department, in two letters to the Minister sent by the Attorney General on 2 October and 1 November and in a letter by Mr. Justice Lynch on 10 October, as now established. It was only the third of those letters, the one from the Attorney General on 1 November, which was shown to the Minister on its receipt on 5 November.

I wonder why.

The two earlier letters, those of 2 October and 10 October, were not shown to her on receipt. Those are the undisputed facts.

We also know that little or no effective action was taken in the Department prior to receipt of the Attorney General's letter of 1 November.

Blame the workers.

We know that because Mr. Justice Lynch was not advised of his removal from membership of the Special Criminal Court until 7 November.

Where and how do we apportion blame between the administrative and executive functions? Strictly speaking, the Minister is responsible in law for every sin of omission or commission on the part of her Department.

When it suits the Minister.

However, every party in this House, every senior manager in the public sector and any reasonable commentator recognises that the Ministers and Secretaries Act, 1924, urgently needs reform to provide for a new management structure for the public sector and to differentiate between the political responsibility for policy decisions and the responsibility for routine administrative decisions.

It will be all right to break the law.

I ask the Acting Chairman to ask the Deputy to allow me to speak.

It is no problem. I will let the Minister speak.

Acting Chairman

We had peace until Deputy Ahern came and he has continually interrupted since. I will leave it to the Leas-Cheann Comhairle.

I thank the Deputy for his courtesy. In the context of the strategic management initiative, the drafting of a public service management Bill to give effect to this necessary and overdue reform is at an advanced stage.

The appointment to, or removal from, membership of the Special Criminal Court of a particular judge is a policy matter.

It is an Executive matter.

Conveying the fact that such a decision was taken to all parties who need to know it and the ensuing implementation of that decision is an administrative matter. The question the Opposition must ask is if it would prefer to stick its head in the ground ostrich-fashion or deal with the real issues raised by this matter. I do not want to get into the business of attributing blame.

I bet the Minister does not want to.

The investigation of the matter has been entrusted to Mr. Cromien and Dr. Molloy and we must await their report. However, on the basis of such information as we have to date, the Minister for Justice was entitled to expect a better service from the Department of Justice on this matter than appears to have been accorded to her.

That impression has been reinforced, not diminished, by Mr. Justice Lynch's letter of 10 October.

Riveting stuff.

I do not seek to minimise the seriousness of what did or did not take place. The consequences of the inaction on this issue are potentially serious and not entirely certain at this juncture. It is inexplicable to me why no action — uncomplicated, routine action — was taken on three occasions, i.e. the initial receipt of the Government decision and the subsequent October letters of the Attorney General and Mr. Justice Lynch, when the receipt of any one of these items of correspondence should have triggered such action. I believe it would be utterly unfair and contrary to natural justice to seek to scapegoat the Minister for Justice for a series of omissions or errors with which she had no involvement. Neither do I want to see an official or officials of the Department scapegoated.

Who, then?

We need to get to the bottom of this saga to sort out the areas where there were personnel and procedural logjams. For the future, the initiatives to be set in train by the Department of Finance on the tracking system for ministerial correspondence and the new guidelines for the follow through of Government decisions should help avert the possibility of similar incidences in the future. In order to improve the system, we need to know what went wrong and how it went wrong. The Minister, the Oireachtas and the people deserve and require an explanation.

Deputy Owen has been an effective and reforming Minister for Justice. She has earned the right to continue filling that post and to continue to tackle and help to resolve the many challenges and problems that the area of justice presents to the Government and the people. In carrying out her duties as Minister for Justice, Deputy Owen enjoys my full support and that of my colleagues in Democratic Left.

I regret this motion has focused on issues of short-term political expendiency and not on the very real administrative and procedural problems which have been highlighted to date——

It is a Government motion.

——and which, on presentation of the report by Mr. Cromien and Dr. Molloy next week, will need to be addressed as a matter of urgency.

One of the key aspects of the matter before the House and under investigation by Mr. Cromien and Dr. Molloy is the apparent failure by a section in a Government Department to pass on, or act upon, a communication from the office of the Attorney General. It is on that aspect, the failure to pass on a communication from the office of the Attorney General, that I invite the House to focus for a few moments.

The most remarkable and outstanding instance in recent times of an important communication from an Attorney General not being passed on to the appropriate person did not occur in the courts section in the Department of Justice, the Minister's private office in the Department of Justice or in the privacy of some Government office. It occurred in the view of those who had eyes to see and in the presence of a large number of those present at this debate and most who sat here earlier this afternoon. It is a matter upon which a number of people in this House can give first hand evidence and one of them has recently given sworn evidence of it in another jurisdiction. It occurred down on the Front Bench in November 1994. The intended recipient of a vital and important communication from the Attorney General was Deputy Albert Reynolds, the then Taoiseach, and the person who failed to pass on the communication from the then Attorney General was the then Minister for Finance, now leader of the Opposition, Deputy Bertie Ahern.

If we are to discuss attitudes towards not passing on an important communication from the Attorney General, then we have in our midst——

No more history, please.

——someone who can speak absolutely first hand of the reasons for not passing on a communication from the Attorney General. For some strange and unaccountable reason, Deputy Ahern, normally very generous in this way, failed to share this experience with us this afternoon.

There remains an area of uncertainty among many Members of this House and among members of Fianna Fáil about the reasons for Deputy Ahern making that decision not to pass on the communication. We all have our opinions about it and we may or may not be right. It is an area of speculation.

Deputy Reynolds had his day in court recently and gave his version of this event on oath. I read from a report of the court proceedings:

Mr Reynolds told the jury that he had not received a letter from the then new Attorney General, Mr Eoghan Fitzsimons, concerning the Duggan case until after he had made his crucial speech to the Dáil about the handling of Smyth's extradition. In retrospect, he found the letter had been sent to the Dáil by staff from the AG's office and had been passed through a number of hands before arriving in his ministerial colleague's bundle of files.

`It never got to me', he said.

`Who was the ministerial colleague?', asked Lord Williams.

`Bertie Ahern', replied Mr Reynolds.

`Your successor?', asked Lord Williams. Mr Reynolds said he was.' , And he did not pass it on to you?', continued Lord Williams.

`No', replied Mr Reynolds. `I hit the ceiling', he said, when he found it on his desk later the evening.

This is an interesting reflection and it is a pity Deputy Ahern did not share his experience of that with us this afternoon because we might have found it enlightening.

Many parallels have been drawn this afternoon but some are not accurate. This confidence debate is utterly unlike the one that took place here two years ago when the Labour Party found Fianna Fáil to be totally untrustworthy — we will not go into the history of that, the locked doors in Government Buildings and so on. Four years ago the Progressive Democrats told us that they had lost all trust in Fianna Fáil. We remember the saga of evidence given to the beef tribunal and the descriptions that Deputies Reynolds and O'Malley used when describing each other inside and outside the House. The Progressive Democrats concluded that they had lost all trust in Fianna Fáil. I am bound to wonder, Sir, as many other Members of the House will, what starry-eyed innocent optimists the Progressive Democrats must be to be making eyes at Fianna Fáil again today as we have seen. I do not know how they can do it.

Fianna Fáil is still reeling in shock. We have seen in Fianna Fáil, time after time and speaker after speaker, evidence of post-traumatic stress syndrome. They cannot get behind the fact that nobody trusts them anymore. They do not even trust themselves. What is happening on the Front Bench of Fianna Fáil? I never saw a man in this House who looked less like a Leader of the Opposition engaging in a confidence debate where he thought he had some ground than Deputy Ahern today. He looked the most depressed man I have ever seen here. A few minutes ago Deputy McCreevy admitted that he does not expect any outcome from the huffing and puffing in which Fianna Fáil and the Progressive Democrats have engaged this afternoon.

We meant the huffing and puffing of the Tánaiste.

They are not interested in facts. If the Opposition parties had any real interest in accountability for the events surrounding the delisting of this judge, they would have awaited the report of the inquiry set up by the Minister for Justice.

To blame an official.

That does not suit them. They do not want information or facts. What they want — the Progressive Democrats are just as guilty of this as Fianna Fáil — is a media circus, and that is what they are getting. A media circus has one big advantage for the Opposition, it diverts attention away from the simple salient fact that the Minister moved with alacrity the moment the problem was brought to her attention in a way that Fianna Fáil never has, and in an area where the Progressive Democrats, for all their legal jargon, have never been tested. We do not know what they would do in this situation.

Fine Gael moved with alacrity when it suited them.

Deputy O'Donoghue gave us another one of his prime examples of clowning in the House this evening with the facile rhetoric that passes for political comment in Fianna Fáil. It struck me that if the years were changed Deputy O'Donoghue could say exactly the same things about his colleague, Deputy Geoghegan-Quinn, in regard to her tenure in the Department of Justice as he said about the Minister for Justice. To listen to Deputy O'Donoghue one would think that every Minister for Justice who ever held office was responsible for every crime that ever took place, be it rape, mugging, beating or whatever. The Progressive Democrats seem to believe that. They have the most facile, stupid analysis of the reasons for crime that I have ever heard.

Deputy O'Donoghue spoke about delay on various fronts. He missed one, Wheatfield Prison. Ten years ago, when I was Minister for Justice, we completed the perimeter wall of Wheatfield Prison. An Estimate I got through Government resulted in the building of the first phase of Wheatfield Prison.

Deputies Mark Clinton and Jim Mitchell objected to it.

In eight years of Fianna Fáil Ministers for Justice not one stone was set on another in the second phase of Wheatfield Prison. Deputy Geoghegan-Quinn invented a new religion in this country, I see it even in my own constituency. People used to want advance factories in their towns but now they want a prison. That is what Deputy Geoghegan-Quinn did for us without ever managing to add a single extra prison space to what was in place at the time she assumed office. It takes some neck for a Fianna Fáil spokesman on Justice to criticise this Minister who has provided more prison places already, some of them coming on stream at the end of this month, than Fianna Fáil did in the eight years they were in office.

What Fianna Fáil Minister ever voluntarily resigned for any of the misdeeds for which they were found to be accountable? Not a single one. This is the party the Progressive Democrats, a party that professes to be in favour of law and order, wants to cosy up to, the party that abolished the idea of law and order and any care for how we run our justice system. I will not mention specific people, but we all remember one.

Deputy Dukes says we are rushing to judgment and should await the outcome of the inquiry. We are joined in that by Democratic Left and Labour who, even as the inquiry was being announced, rushed to say they supported the Minister and would back her through thick and thin. Deputy Dukes and his colleagues should be consistent.

I am constant as the Northern Star.

Perhaps the reason Governments were so slow to build prisons was that they were paying off the debts Deputy Dukes incurred when, over a four year period as Minister for Finance, he doubled the national debt.

Fianna Fáil had the good sense to agree with me.

The central plank of the Minister's defence is ignorance — she knew nothing, therefore no blame can be attributed to her. She says what happened in her Department was a debacle, a catastrophe, the worst possible thing that could happen in a Department. Because it happened in her Department and because it was a debacle she accepts full responsibility in a technical sense, whatever that means, but she will be damned if she will take any of the blame. The Minister for Justice should know, as every independent commentator in this country knows, that that argument is about as solid as Legoland. If accountability means anything, blame must sometimes be taken and consequences sometimes ensue in the absence of knowledge and, therefore, in the absence of culpability in that sense. If that were not the position nobody would ever have to resign because, however great the disaster, it could never be proved as a definitive fact that a Minister had actual as opposed to constructive knowledge.

As authority for that proposition let me quote none other than the Tánaiste, Deputy Spring, the high priest of accountability who two years ago said that if that principle were accepted there could be no accountability, no blame without personal knowledge and the whole principle of accountability would wither away. He said that in 1994, and he was right. Now he is standing behind a Government and a Minister who is seeking to escape the consequences of her action and whose defence is based solely on that principle. What has withered away is not the principle of accountability but the Labour Party's standards, if it ever had any, its grasp of the difference between right and wrong, between what should be acceptable and what should not. Were that principle to be accepted, there could be no blame, no resignation, no consequences without personal knowledge. The Minister, Deputy Owen, is a perfect example.

If actual knowledge had to be proved on all occasions before somebody could be blamed, Deputy Owen, Minister for Justice, could never be blamed for anything because she never seems to know anything. During the Brinks Allied controversy the Minister for Justice knew nothing for extended periods of time, and the longer the controversy went on, her degree of knowledge seemed to be less. In the Urlingford debacle the Minister was so clueless she publicly congratulated the Garda on a massive drugs find. During the controversy about the Duncan case she knew nothing for more than a month after the case collapsed and the Garda did not feel the need to inform her. The sergeant in charge of the extradition warrant in that case was moved from his position a few days after the case collapsed. The Garda Commissioner and gardaí at senior level knew that. Did anybody think it worth their while to inform the Minister? Not a chance. The Minister for Justice remained silent while the Government press spokespeople, henchmen and spin doctors of various types continued to blame the British for the collapse of the extradition proceedings. People in the Department of Justice must have known the facts but did they consider informing the Minister? Not a hope.

In this case the civil servants in the Minister's Department never bothered to tell the Minister whether steps had been taken to inform Judge Lynch that he had been removed from the Special Criminal Court. No effort was made to inform the Minister about whether one of the most crucial decisions a Minister can make, in terms of its potential consequences, had been implemented. A letter, marked "Personal", arrived at the Minister's private office from the Attorney General as the court was about to commence sittings. It pointed out that the official delisting might not have been communicated to Judge Lynch. The Minister's officials received that letter. Did they tell her? No. It is a miracle she got the letter of 5 November although perhaps it was for the reason outlined by my colleague, Deputy McCreevy. If somebody on the outside had not been putting pressure on the Department of Justice, this letter would probably have ended up in the dustbin or in the shredder with the odd extradition warrant or two.

On 10 October, Judge Lynch wrote to the Minister for Justice inquiring about his status. Her officials received that letter. Did they tell the Minister? No. Why change a winning formula? Nobody had told her anything about anything in the past, so why start now?

That is an impressive catalogue of ignorance for the Minister for Justice. It is hard to equal. It appears what the Minister does not know about the workings of her Department would fill the National Library several times. Never in the history of human knowledge has so much been concealed by so many from so few or, in this case, from one. This two years of darkness and not knowing has been brought to us courtesy of the Minister for Justice, Deputy Owen. Did the Minister ever consider that people might be conspiring to keep things from her?

The Deputy should wait until the investigation when he might get the answer.

It is said that in certain circumstances the wife is always the last to know. In the Department of Justice the Minister is invariably the last to know.

If the Minister did not know any of these things, as she says, did it not occur to her that she might have taken pains to find out what she should know? The net result of this lack of knowledge is that the Department of Justice is on auto-pilot, if not in orbit. During the debates on the Duncan controversy I had the impression that the Minister and the Department were operating on different planets. Events over the last few days have convinced me I was wrong. They are not operating on different planets, they are operating in different galaxies. Did it occur to the Minister for Justice that this constant lack of knowledge might afford a simpler explanation? Might it be explained by her inability to run a major Department in view of the fact that she knows so little about its workings?

The Minister for Justice might feel she is entitled to cling to office if the State manages to cling to the 16 prisoners, the bird men of Portlaoise. However, it is not the consequences of the debacle over which the Minister has presided that matters but the potential consequences, which in this case are cataclysmic. If these people, who are accused of committing the most heinous crimes in the history of the State, do not manage to walk away on a technicality it will be in spite of, rather than because of, the Minister for Justice. If somebody is employed to run a business and, through failure to inform themselves of what is going on around them, they allow the business to slide into bankruptcy, will it matter when they give an account of their stewardship whether somebody else discovers their failures and averts the situation? Hardly. The same principle applies in this case.

I have a number of questions to which I hope the Minister for Justice will reply. The Minister went to Cabinet and proposed that Judge Lynch be removed from the Special Criminal Court. Her proposition was accepted so why did the Minister not ensure that the decision, which was of potentially momentous importance, was implemented? Last Thursday the Minister told the Dáil: "I will give as accurately as I can all the information I have at this time, as the investigation in my Department is still continuing". She said she would expand on this information after the inquiry. A substantial part of that information consisted of four letters, two from Judge Lynch and two from the Attorney General, but the Minister for Justice only adverted to three letters. Why did she fail to mention the second letter from Mr. Lynch? Was that not information in her possession at the time she gave her statement? She said she would expand on the information she was giving but expanding on information is different from withholding information, which the Minister did last Thursday.

I also wish to ask about the position of Judge Kevin Haugh who was appointed to replace Judge Lynch. Judge Haugh was informed of the position on 6 September. Did the Minister receive any communications subsequent to that from Judge Haugh inquiring about his position? This man was informed that he was to be a member of the Special Criminal Court on 6 September, yet the judge who had been delisted continued to sit until 5 November and was not informed of his delisting until then. Was there communication between Judge Haugh and the Minister for Justice in the meantime? What did Judge Haugh's duties consist of in that time? Did he sit as a member of the Special Criminal Court? Is there a panel system in that court? I do not know how it operates in practice and I would like the Minister to clarify it. Why did the Minister get some of the letters that arrived in her private office and not get others? Why was it an official who was not working in the courts section of the Department who took the initiative in this regard? The Minister must give clear answers.

The Attorney General has a duty not only to be legal adviser to the Government but also to protect the public interest. This is stated in unequivocal terms in section 6 (1) of the Ministers and Secretaries Act, 1924. It is a duty clearly recognised by the courts. In the case of McLoughlin v. the Minister for Social Welfare, 1958, Mr. Justice Kingsmill Moore said: “It is quite clear that the Attorney General is in no way the servant of the Government but is put into an independent position. He is a great officer of State with grave responsibilities of a quasi-judicial as well as of an executive nature. ... it may be his business to adopt a line antagonistic to the Government...”.

In the case of Attorney General v. Hamilton, 1993, Mr. Justice McCarthy said “In my view the nature of the Office of the Attorney General charges him with a duty to enforce the Constitution whether it be in the protection of the unprotected ... or in a claim of public right, or otherwise”. It is clearly in the public interest that people who are tried before the Special Criminal Court should have their cases processed properly. The facts of the case demonstrate clearly that the Attorney General failed in his duty to protect the public interest. Following the Supreme Court decision and the subsequent High Court decision the Attorney General has a positive duty to be proactive if something is brought to his attention, which it was in this case. The fact that Judge Lynch was still functioning as a member of the Special Criminal Court after his delisting was first brought to the attention of the Attorney General on 2 October. His only response was to write a letter to the Minister to which he got no reply. A month was allowed to elapse. The Attorney General knew or could have discovered at any time during that month that the Special Criminal Court was operating illegally. During that time the Attorney General was in regular contact with the Minister for Justice but he never felt obliged to discuss the matter with her or to inform the Taoiseach. When he read in a newspaper at the end of the month that Judge Lynch was functioning as a judge of the Special Criminal Court his only reaction was to sit down and casually write another letter. Obviously, he was content to wait for the Minister to reply to this letter at her leisure, knowing all the time that the Special Criminal Court was operating outside the law.

Mr. Gleeson's zealousness in enforcing the constitutional protection of the public interest can best be gleaned from the terminology in his two letters to the Minister. The first, dated 1 October, stated there was an impression that Mr. Lynch was still functioning as a member of the Special Criminal Court. Did he take any steps to confirm whether that impression was correct? Did he telephone Mr. Lynch, the Four Courts or the Secretary — if there is such a person in the Special Criminal Court? Did he even bother to speak to the newspaper vendor outside the offices of the Special Criminal Court who would have apprised him of the facts?

The second letter is even more comical. Mr. Gleeson apparently read in a newspaper an account of a case in which Mr. Lynch appeared as a member of the Special Criminal Court. His reaction was not to telephone the Minister for Justice to immediately warn her but to write a letter saying "it appears Mr. Lynch is still functioning as a member of the Special Criminal Court". Appearances can be deceptive but what we are talking about here is reality.

The tone of Mr. Gleeson's second letter where he says "it appears he is still functioning as a member of the Special Criminal Court" conjures up the image of Mr. Lynch arriving at the Special Criminal Court and entering by a back door or arriving in a car with darkened windows and entering with his head covered like the prisoners, or maybe he sat on the Bench with a Martin Cahill style balaclava over his head.

The reality is that Mr. Lynch dispensed justice for five weeks in the Special Criminal Court after he had been delisted, in full view of the media and the public who were admitted to the court, even though he had no right to be there, no more than a traffic warden who has retired has the right to give out parking tickets. That was through no fault of his own. Justice was being dispensed in a three judge court by two judges and the invisible man. All the chief law officer of the State said was that it could create legal difficulties. Most senior members of the Bar are inclined to use language carefully. This would be side-splitting were it not so serious.

I am pleased the leader of Democratic Left took time off from his busy schedule of forgetting which comrade shot which or reminiscing about his rusty old rifle to issue his ritual defence of the Minister for Justice, Deputy Nora Owen.

(Carlow-Kilkenny): It was generous.

Perhaps I can use a military analogy as we are dealing with Democratic Left. The Tánaiste, the Bollinger Bolshevik Deputy Spring, otherwise known as His Smugness, who is on a different mission, took time off from his busy job of running the world to issue a ponderous statement in carefully measured Waldorf-Astoria terms to support the Minister for Justice.

A journalist, Brenda Power, writing in the Sunday Tribune on 10 November 1996, page 17, put the matter relating to Deputy Spring much better than I ever could when she said:

... and obviously mislaid letters and disingenuous remarks and significant questions over who knew what, and when, now bother Dick Spring and his "skulking fixers" an awful lot less than they used to.

The Taoiseach supported the Minister in recognition of her support for him at a vital time. He said he would not even accept her resignation, that she is too important to the country and all the gaffes, including this one, are part of a learning curve that will make her a better Minister. When will the curve peak, in 2057?

It is probable that we will still be here.

The inquiry will probably focus on administrative matters but its initial purpose was to set up a kangaroo court to scapegoat a defenceless civil servant for the Minister's incompetence. That is Government by scapegoat. There is another conspiracy here, the conspiracy among the three party leaders to cling to power at any cost. I ask the Minister to consider how the public view this situation and the nauseating hypocrisy of the difference stance taken by people such as the Minister now as opposed to 1994. I was about to use the majestic intonation of Leo Amery to Chamberlain: "In the name of God go", but that would lend too much dignity to the occasion. In the circumstances it would be more appropriate to quote the words of an obscure turn-of-the-century music hall songwriter, William Jerome: "You need not try to reason, your excuse is out of season, for Heaven's sake just kiss yourself good bye".

How lyrical, the Deputy should put it to music for us.

The Minister has lessened the institutions of the State in the eyes of every right thinking person. She has eroded confidence in an already badly damaged criminal justice system and has made herself a laughing stock from one end of the country to the other. The only honourable course for her is resignation.

Appalling nonsense.

I wish to share my time with Deputy Browne.

Tabling a motion of no confidence by the Opposition is political posturing, no more no less. Does anyone in the House or outside, who has reached the age of political reasoning think a Fianna Fáil Minister for Justice in the same circumstances would resign? The answer is an emphatic no. If the roles were reversed would Deputy Bertie Ahern resign as Taoiseach? Would, say, Deputy Burke, a former Minister for Justice, resign? The answer again is an emphatic no. That is the record of Fianna Fáil. Despite all the outrage, and we have had much of it, the indignation and the rounding on an excellent Minister for Justice what we are engaged in is a ritual political exercise. Deputy O'Dea asked what the public will think of it. The public know it is a political ritual exercised by Fianna Fáil.

Test it.

If we were on that side of the House we might possibly do the same but I hope we would do it with more incisiveness than this which has already fizzled out on the first day. This is not to suggest that the subject, the failure of the system within the Department of Justice, and the background to it, is not one of the utmost seriousness. We must wait the outcome of the inquiry for a full explanation. Whatever the findings we know at this stage there are serious problems in the Department.

The essence of the charges and demands being made by the Opposition is that because of legislation passed in 1924, about the running of Departments of State, the Minister must take personal responsibility for every act of every civil servant and is legally responsible in a formal way for all these matters. That Act was passed at a time when most of the business of the Government, by Ministers and civil servants, was done by hand written letters when the entire budget of the State for that particular year could be lost in a tot by the Minister for Finance in calculating his budget. The period we are talking about is long before most parties in this House were formed. My predecessor at that time was Alex McCabe who went on to found the Educational Building Society.

That is when this legislation was passed and it is the time span we are dealing with. The legislation on which the Opposition are basing their call for the resignation of the Minister is archaic. It is on the Statute Book but many other archaic laws on the Statute Book have become meaningless with the passage of time. How many Ministers would survive their full term of office if they were personally responsible for all serious mistakes made in their Department? Has a Fianna Fáil Minister ever resigned without being pushed?

We are dealing with an administrative mess which the Minister for Justice was personally not aware of nor responsible for. Everyone accepts that and I have not heard any speaker in the Opposition suggest otherwise. When she became aware of what had happened she acted swiftly, decisively and openly. I am confident that when the findings of the inquiry are revealed she will act equally decisively in whatever way is required.

Including resignation.

The pressure of work on all Ministers and Ministers of State calls our electoral system into question. It imposes fulltime constituency work on Ministers and Ministers of State, just as it does on Dáil Deputies. Unless they do that work, they will not be returned to the Dáil. There is no use being an excellent Minister or Minister of State as regards policy and administration if one is not back in the House when the Taoiseach is forming a Government.

It is not an exaggeration to say that most hardworking Ministers with vast Departments to run are, of necessity, forced to spend more than 50 per cent of their working time looking after their constituencies. We should re-examine the electoral system. The public will not get rid of proportional representation but there should be some form of list system whereby Ministers and leading Opposition spokespeople can be free of constituency work for a particular period.

I hope the inquiry will look into what the Association of Higher Civil Servants said about the work of civil servants in the Department of Justice. It said they are stretched beyond breaking point and it is virtually impossible to provide a service they can stand over to any Minister. This is a serious statement from a responsible association. I hope the inquiry will examine what repairs and reforms are necessary in this area.

The Attorney General acted in a manner which every reasonable person would agree was totally correct. When he felt there could be a failure in communications he took the kind of action any sensible man or woman would have taken on an issue which was not directly in his own area. This was an effective action and nobody should pillory the Attorney General in this case. The ridiculous demands from the Opposition have underlined the fact that it is time for a new Ministers and Secretaries Act, tailored to the administration of Departments as they are at the end of the century, not as they were at the foundation of the State.

Deputy Owen is an excellent, hardworking, imaginative and reforming Minister for Justice. She has revitalised the Garda system, introducing new divisions around the country, including Sligo, where an assistant commissioner has been appointed. This has been exceptionally effective in the patrolling of the Border arising from the BSE scare. She has initiated far-reaching reforms in all aspects of the criminal justice system. I am glad I will have the opportunity to vote total confidence in her and the Government tomorrow.

(Carlow-Kilkenny): Aontaím go mór leis an Teachta Nealon nuair a deireann sé nach bhfuil sé ceart ar chor ar bith go mbeadh an díospóireacht seo ar siúil inniu. Ba chóir go mbeadh an díospóireacht seo ar siúil an tseachtain seo chugainn, nuair a bheidh an tuarascáil againn agus nuair a bheidh fhios againn cad a tharla i ndáiríre. Níl ach troid na mbó maol ar siúil ag Fianna Fáil. Níl siad ach ag béicigh agus ag screadaíl. Tá spórt acu agus ceapann siad go bhfuil na daoine ag éisteacht leo. Da mbeadh siad i ndáiríre, d'fhanfaidh siad go dtí go mbeadh fhios againn cad a tharla.

The political purity of the Progressive Democrats always wears me down. They are always so perfect. Some day they will be in Government and everyone will laugh if the rug is pulled from under them by someone who makes a mistake. We should not waste our time. As I said last week, though I was misquoted in the newspapers, there seems to be a tendency in Fianna Fáil to use the theme of "we will all be ruined, says Hanrahan". According to Fianna Fáil, things have gone wrong in the Government every day.

If Deputy O'Donoghue heard the cat had kittens in the kitchen he could be as apoplectic as he is about serious matters. Some other members of the Opposition Front Bench, excluding Deputy de Valera, can get extremely excited about things which appear to be difficult.

That is a compliment.

(Carlow-Kilkenny): This is all a sham. I have no doubt of the Minister's innocence. However, there were people who failed to do their job. We are in a serious situation because those paid to do a job did not do it. The budding barristers in the Opposition have asked questions today. They think they are having a field day in the High Court and have other ambitions. Why do they not wait until next week, when the report is issued and we will have answers? At that stage the Minister will still be prepared to come to the House and answer questions. She was expected to make a statement, which she did. People shouted for her to publish the letters. She published the letter from the judge concerned. The response of the Opposition was to ask why she did not publish the Attorney General's letters. If she published those, the Opposition would want to know why she did not publish something else. This is not a serious debate by the Opposition. They want to create an impression of chaos and cover-up. The word “cover-up” is used so often.

Is it just an impression?

(Carlow-Kilkenny): If the Deputy thinks there is a cover-up, he is mistaken. The Minister acted the minute she found out what was wrong. She made a statement in the House at the first opportunity. She established an investigating committee. People like Deputy Power want to convince me about a cover-up. It is the one case where there has not been a cover-up. If one wants to cover something up, one certainly does not make a statement or set up an investigating committee. For that reason, the Minister deserves all our thanks for upholding the standards a Minister should have once they find something is wrong.

I support the concept that, politically, a Minister is responsible. If a Minister does, or fails to do, something or tells lies, he or she should take the consequences. I am equally adamant that the people who did not do their work have to take the consequences also. There has been discussion about scapegoating civil servants. Is a Minister expected to sit in an office and tolerate people who, in three months, could not deliver an important message from Cabinet? If I were a Minister, I would send them somewhere else. It is almost 70 years since the idea of ministerial responsibility was implemented, when Ministers knew their staff personally, because there were so few. Times have changed and we now expect Ministers to accept full responsibility for everyone who makes a mistake in their Department. The Opposition has said a civil servant is being used as a scapegoat in this case but nothing of the sort is happening. To err is human and someone has to accept he made a mistake. However, no Minister should be held responsible for the mistakes of others.

Debate adjourned.