Dáil Éireann debate -
Tuesday, 26 Nov 2002

Vol. 558 No. 1

Private Members' Business. - Tribunal of Inquiry into Garda Activities in Donegal: Motion.

An Ceann Comhairle

I wish to make a brief comment at the outset of the debate. It is stating the obvious to remind Members that the subject matter of the debate relates to a sitting tribunal of inquiry. In doing so I should like to draw the attention of the House to the position laid down in the tribunals of inquiry Acts whereby the sole member of the tribunal, in consenting to a request for a change in the terms of reference, can do so only where he is satisfied that such an amendment would not prejudice the legal rights of any person who has co-operated with or provided information to the tribunal under its terms of reference. This provision mirrors to a great extent long-standing rulings of this House, two of which are of particular relevance, namely, that Members should not comment on, criticise or make charges against a person outside the House or an official, either by name or in such a way as to make him identifiable, as he is defenceless against accusations made under privilege of the House. Another ruling of my predecessor was that there is an onus on Members to avoid if at all possible referring to persons outside the House in a manner which could be construed as being prejudicial to any subsequent investigations which may be deemed necessary by the appropriate authorities. The House is not a court of law and adjudication of aspects of current controversy and any individuals associated therewith under fair and proper procedures rests elsewhere in accordance with the law and not in this House.

In addition, I remind Members that under Standing Order 56 a matter should not be raised in such an overt manner as to appear to be an attempt by the Oireachtas to encroach on the functions of the courts or a judicial tribunal, and when permission to raise the matter has been granted there will continue to be an onus on Members to avoid if at all possible comment which might affect or prejudice the outcome of proceedings.

I ask Members to bear these points in mind when making their contributions.

Mr. Costello

I move:

That Dáil Éireann, having regard to the motions passed by Dáil Éireann and Seanad Éireann on 28th March, 2002, providing for the establishment of a Tribunal of Inquiry into certain garda activities in Co. Donegal and the concerns that have since been expressed about the inadequacy of the terms of reference for the Tribunal:

– instructs the Government to use the powers available to it, under section 1 of the Tribunals of Inquiry (Evidence) (Amendment) (No. 2) Act, 1998, to have the Attorney General consult with Mr. Justice Morris with a view to seeking his consent for an amendment to widen the terms of reference by the inclusion of the following paragraph;

‘(k) The response of the Garda Síochána, the Department of Justice, Equality and Law Reform, the Minister for Justice, Equality and Law Reform, the Office of the Attorney General and any other relevant State agencies to the allegations arising from the foregoing paragraphs and, in particular, the extent to which they exercised the powers and functions available to them fully, properly and in a timely manner.';

and

– requests the Attorney General to enter into discussions with the McBrearty Family with a view to meeting their concerns regarding legal costs, through an arrangement similar to that reached between the Minister for Health and Children and the Irish Haemophilia Society in April, 2000 regarding legal representation at the Lindsay Tribunal, so that they can be legally represented for the duration of the Tribunal.

I propose to share my time with Deputies Howlin and O'Sullivan.

I am aware of the sensitivities and importance of this issue. If the Chair allows me the latitude Deputy Gildea was given the last time this matter was raised in the House I will have plenty of scope.

The purpose of the Labour Party's Private Members' motion tonight is to direct the Government to use the powers available to it to seek the consent of Mr. Justice Morris for a widening of the terms of reference of the tribunal of inquiry into certain Garda activities in County Donegal and to require the Government to enter into discussions with the McBrearty family to agree acceptable arrangements to enable them to be legally represented for the duration of the tribunal.

Given the seriousness of the allegations, it is unthinkable that the Minister for Justice, Equality and Law Reform, and the Department, who have overall responsibility for the Garda Síochána, as well as the key State agencies, such as the Office of the Attorney General, should be excluded from the remit of the tribunal. When the Lindsay tribunal was established two years ago to inquire into the circumstances surrounding the infection of haemophiliacs with HIV and hepatitis C, the role of the Minister and the Department of Health and Children was specifically included in the terms of reference of the tribunal. Why should the role of the Minister for Justice, Equality and Law Reform and his Department be immune from examination by the Morris tribunal?

The second area the Labour Party's Private Members' motion seeks to address is the question of legal representation for the McBrearty family. More than any other group of people, the McBrearty family are at the heart of the Morris inquiry. There is prima facie evidence to suggest that a serious injustice was done to the McBrearty and McConnell families and their relatives over the years since the arrest of Frank McBrearty senior in December 1996 for the murder of a man, Richie Barron, who, it transpires, was not murdered at all.

There is now a real danger of a double injustice being done if the family is not allowed to be legally represented for the duration of the tribunal. I am confident that at the end of the tribunal, the McBrearty family will be awarded their legal costs. However, it is entirely unreasonable to compel them to produce in advance the large amount of money that would be required to pay lawyers for a tribunal that could run for a number of years, especially when we consider the substan tial financial losses they have already incurred. The Minister, as a senior counsel, knows how expensive senior counsel can be.

The Labour Party again points to the precedent in the Lindsay tribunal where the Irish Haemophilia Society faced similar problems regarding the funding of its legal team. On that occasion, the Minister for Health and Children, Deputy Martin, offered money to the society to enable it to meet 75% of the legal costs in advance of any decision by the tribunal on the awarding of legal costs. In a press release on 14 April 2000, the Minister stated:

I think it is important that the Irish Haemophilia Society can participate in this Tribunal. I am delighted and happy that we have arrived at a solution regarding costs, and that the Society now feels that it can take part with confidence in the Tribunal.

The Labour Party motion calls for similar arrangements to be made for the McBrearty family. Government sources have repeatedly suggested that the terms of reference of the tribunal can be changed only if there is a request from Mr. Justice Morris. This is not the case. The consent of Mr. Justice Morris would certainly be required for any change. However, there are specific procedures set out in the Tribunal of Inquiry (Evidence) Amendment Act, 1998, which allows the Attorney General, on behalf of the Government, to consult a tribunal to seek its consent for a change in its terms of reference. Mr. Justice Morris was at pains to make this point at the tribunal hearing last week.

The Labour Party motion, if passed, would instruct the Government to initiate this process of consultation. There is already a precedent for such a consultation. The then Minister for Health and Children, Deputy Martin, in October 2001, requested Ms Justice Lindsay to consent to a widening of the terms of reference of her tribunal after she declared that she did not think they were broad enough to cover the role of the multinational drug companies in the infection of more than 260 haemophiliacs with HIV and hepatitis C. On that occasion the present Minister for Justice, Equality and Law Reform, then serving as Attorney General, acted as the go-between, relaying the request of the Minister for Health and Children to Ms Justice Lindsay and her reply to the Minister. Less than a week following the request, Ms Justice Lindsay had replied, declining to extend the terms of reference on the grounds that they would be unfair and unjust to various parties. In the light of the present furore over the Government's failure to deliver its promised inquiry into the role of the multinational drug companies, and the Minister's unhelpful intervention, perhaps in hindsight it would have been better to have amended the terms of reference of the Lindsay tribunal in 2001 and to have got on with pursuing the multinational drug companies and holding them accountable as other countries have successfully done.

After opening statements by the Morris tribunal inquiry team to the tribunal, Mr. Justice Morris declared on 19 November that he would not be seeking an extension of the existing terms of reference as he did not think it appropriate for him to do so. He said: "I would have no business reversing the decision of the people of Ireland". He did, however, sympathise with the financial burden placed on the McBrearty family. A couple of days later in the Dáil the Taoiseach stated that he would not be seeking an extension to the terms of reference either but that he was prepared to consider a request from the tribunal chairman. Neither party to the proceedings was prepared to take the initiative though both appeared willing to move forward if the other moved first.

The Labour Party motion facilitates a meeting of minds on the matter. It allows the elected representatives of the people to address the issue once more in the Dáil and to vote on it. If adopted, the Labour Party's motion would satisfy the expressed concerns of Mr. Justice Morris about changing the terms of reference and would enable the Attorney General, on behalf of the Government and Minister for Justice, Equality and Law Reform, to consult with the tribunal chairman to seek to widen the terms of reference and to consult with the McBrearty family with a view to meeting its concerns about the cost of the tribunal.

Unless the terms of reference are widened at this point in time before the substantive work of the tribunal begins, there is a danger that the deliberations of the tribunal could be frustrated and the inquiry run into the sand as has already happened with so many of the individual Garda investigations and internal Garda inquiries to date. Neither justice nor the Exchequer can afford another inconclusive inquiry.

I pay tribute to the excellent parliamentary work of my colleague and former spokesperson on justice, Deputy Howlin, and the former Fine Gael spokesperson on justice, Senator Higgins. They did Trojan work for democracy in highlighting the issues and arguing the case for a tribunal of inquiry.

The terms of reference of that tribunal of inquiry, established in March of this year, read like the chapter headings for a macabre, blood-curdling novel. The tragic death of Richie Barron in 1996 and the subsequent Garda investigation gave rise to allegations of cover up, wrongful arrest and detention, harassment of the McBrearty family members and others, planting of explosives and finds of bomb-making equipment, hoax telephone calls, an arson attack on a telecommunications mast and a plethora of internal Garda inquiries and investigations. Each allegation was more bizarre than the next.

No report of any investigation or inquiry has been revealed publicly to date. Already in the tribunal the opening statements by Peter Charleton SC reveal further startling allegations, namely, that the signature of Frank McBrearty junior confessing to the murder of Richie Barron was forged by a garda, that two gardaí refused to co-operate with the inquiry by assistant commissioner Kevin Carty in regard to their activities on the night of the death of Richie Barron, that two gardaí had killed Mr Barron, and that a garda had pointed a loaded gun in the face of another garda. The allegations are becoming more shocking and more serious by the day.

In the last analysis the buck stops with the Minister for Justice, Equality and Law Reform and the State agencies. Why was the initial request for the exhumation of the body of Richie Barron not proceeded with by the former Minister for Justice, Equality and Law Reform, Deputy O'Donoghue, in 1997? Had he granted the exhumation immediately, a murder inquiry and all that followed could have been avoided. The Minster has never satisfactorily answered this question. Why were the 165 Garda summonses against Frank McBrearty withdrawn after years had elapsed? Why has no action been taken by the authorities after the plethora of investigations proved inconclusive? Why were the internal Garda reports allowed to gather dust in the Garda Commissioner's office? Were the Minister and his Department and the Office of the Attorney General apprised of the progress of inquiries, the allegations that abounded and the contents of the inquiry reports? Where was the leadership, the sense of responsibility, the transparency and the accountability?

Every time the issues of transparency and accountability arise the present Minister and his predecessor loudly proclaim their commitment to a Garda inspectorate. At this stage the proposal has been dusted down at least half a dozen times in the last 18 months. Now the present Minister promises to have the legislation in place by Easter 2003. I will believe it when I see it.

It is imperative to put in place immediately a set of structures that will restore credibility to the workings of the Garda Síochána. The Garda Síochána was established in 1923 in the middle of the Civil War as a proud force, unique in its time, that would keep the peace not by force of arms but by the strength of its moral authority.

That sound principle has given quality policing to this country over the last 80 years and through some difficult times. We owe the Garda a lot in recent times. I am keenly aware in my own constituency of the degree to which gardaí have adapted to confront the scourge of drugs in ghettoised urban communities. The partnership between the Garda and the community is everything. If the Garda loses the credibility and trust of the people mayhem will ensue and we will have an ugly society.

The Labour Party believes that it is time for a new beginning, a fresh start and a new partnership with the people. First, however, the unfinished business must be dealt with. The allegations of Garda misconduct and misbehaviour must be addressed fairly and honestly in the Morris tribunal, the Barr tribunal, the reclaim the streets inquiry and other current inquiries. It is nothing short of scandalous that Mr. Justice Barr, who was appointed in May to inquire into the controversial shooting of John Carthy at Abbeylara two and half years ago, has still not been given a suitable premises by the Office of Public Works and cannot carry out his work properly.

Internal Garda investigations into serious allegations against gardaí must be a thing of the past. There can be no credibility in an internal inquiry in which workmates investigate allegations of misbehaviour by their colleagues. An independent complaints mechanism must be put in place to investigate allegations of Garda wrongdoing. Otherwise we face an increasing number of tribunals of inquiry being established at great expense to the taxpayer. That will almost certainly undermine further the credibility of the Garda.

There is greater reform required than a new complaints mechanism. In the first instance the Labour Party proposes a new Garda authority with responsibility for the recruitment and maintenance of the Garda Síochána and for the introduction of public accountability into its operations. At local level we propose the establishment of county policing liaison committees. Their function would be to provide a forum of local authority members representing the community and gardaí. They would work together in drawing up local policing plans for their functional areas and would monitor the effectiveness of these plans.

Finally, we propose the establishment of an office of Garda ombudsman to replace the Garda Complaints Board. The ombudsman would have his or her staff independent of the Garda Síochána and would have the authority to investigate specific complaints and to initiate inquiries or investigations even where no specific complaint has been received.

It is in the interests of the Garda and the community that the major allegations of the present are fully inquired into, that new structures of accountability and transparency are established and that a fresh partnership is forged with the people. As an essential step towards achieving that goal I urge the Minister to accept the Labour Party's Private Members' motion and to begin the process of widening the terms of reference of the Morris tribunal so that justice can be done and be seen to be done in Donegal.

There are a number of points that need to be made on the circumstances in which the original motion establishing the tribunal was taken in the Dáil last March. On previous occasions where there were proposals to establish a tribunal under the Tribunals of Inquiry Act, there was extensive discussion between the Government and the Opposition parties with a view to securing broad agreement on the terms of reference. There was extensive consultation with the Opposition parties on the draft terms of reference for both the Flood and the Moriarty tribunals. In the case of the Flood tribunal there were consultations over several days and many drafts were produced and discussed before anything was brought before the Dáil.

There was absolutely no consultation with the Opposition parties on this occasion, although everyone would acknowledge that this is one of the most serious issues ever to have been considered by the Dáil. Not only was there no consultation, but there was little advance notification of the Government's proposals in regard to the proposed terms of reference. The terms of reference were only circulated to Opposition spokespersons late on the night prior to the debate on 28 March. There was little time for the Opposition parties to consult with anybody, or to take advice on their contents.

It is now clear that the reason for the failure of the Minister for Justice, Equality and Law Reform to consult with the Opposition, or to give adequate notice of the resolution he was going to bring before the House, was because he was determined that whoever was going to be called to account for the shocking events in Donegal during his term of office, it would certainly not be him.

The shocking allegations read out during the opening statement in the Morris tribunal of what went on when Deputy O'Donoghue was Minister for Justice, Equality and Law Reform may go some of the way to explain the enthusiasm with which he fled the Department after the general election. However, he cannot be allowed to evade his political responsibility for the conduct of gardaí and law officers of the State. That is why these terms of reference are seriously flawed and why they must be changed.

It is unusual but not unprecedented to have a tribunal's terms of reference changed by a resolution of the House. The terms of reference of the Flood tribunal were amended twice and the law was changed on two occasions to allow this to happen. There is no legal impediment to the course we are proposing. All that is lacking is the political will. We have read much about how Deputy McDowell is going to be a reforming Minister, that he will tackle wrongdoing and vested interests and be a champion of the truth. This is the first real test of his bona fides. Is he going to bring down the shutters and ensure that his office while he was Attorney General is to be immune from scrutiny in regard to these matters? Is he going to close ranks and ensure that the record of his predecessor as Minister for Justice, Equality and Law Reform is not subjected to the scrutiny that it deserves or is he going to do his best to ensure that the full truth emerges? The choice is his.

Mr. Howlin

I thank my colleague, Deputy Costello, for sharing time. I did not expect to be addressing the issue of policing in Donegal again. I recently read the contributions I made by way of parliamentary questions, priority questions, Adjournment debates and substantive motions to this House from when I was appointed party spokesperson on justice in 1999 until the last general election. On every occasion I contributed, I dealt substantively with issues that were a cause of concern in Donegal and that I considered required investigation. My contribution tonight will be of a different order because, finally, such an investigation is under way. However, what we seek is a full investigation, to bring this matter to a conclusion so proper terms of reference, that bring in all relevant parties, can be deemed to be appropriate and all can be assured that the truth – wherever it leads – will be investigated and exposed to the full light of day.

On 20 November 2001 – almost a year ago to the week – the Opposition parties in Dáil Éireann tabled an extraordinary motion calling for the establishment of a tribunal of inquiry into Garda conduct in Donegal. That motion, which I helped draft, specifically stated in subsection (g) that the terms of that investigation specifically included, “the role of the State, the organs thereof and relevant public bodies and officials in relation to these matters”. From the outset, it was deemed to be critical that the State, the Department of Justice, Equality and Law Reform and its agents would be included in the scope of these investigations because, as some of the individuals concerned have rightly asserted, they know well what happened to them but it is more important to know how it happened, why and why it was prolonged for years on end.

During the course of that debate, I said that it was one of the most significant motions to come before that Dáil. The tension of that debate, a year ago this week, underscored the seriousness with which the Members of the House regarded it. The debate ended in a vote and Members will recall the House divided 73 to 72, which in my memory was the closest division of the last Dáil. Of all the issues of substance we debated, none divided the House so evenly. As I said on the night, had there been a free vote, that motion – including paragraph (g) – would have been carried overwhelmingly. What was carried the following night when a vote was taken was an amendment in the name of then Minister for Justice, Equality and Law Reform, Deputy O'Donoghue, appointing an eminent legal person to conduct an independent review of all relevant papers. Consequent to that decision, Mr. Shane Murphy, SC, began that review.

On Friday, 22 March 2002, in the dying weeks of the last Dáil, this House debated the Tribunals of Inquiry Bill, 2002, which made changes in the Tribunals of Inquiry Acts to facilitate the holding of a tribunal into all the matters that had been debated for so long in this House relating to Garda activities in Donegal. That Bill, debated in this House – unusually on a Friday – was published two days before and passed all Stages within 48 hours of being published without any consultation with Members on this side of the House. All Stages were passed, by guillotine, in three hours on Friday morning. This is one of the most important issues to be debated in this House. The terms by which the Tribunals of Inquiry Acts were to be amended were never debated and serious issues tabled by way of amendment by former Deputy Shatter, then Fine Gael spokesperson on justice, and me were not entertained nor could they be in the time frame allowed – virtually nothing on Committee Stage and certainly nothing on Report Stage on the day. I commend that debate to the current Minister – it makes for interesting reading. I do not have the time to quote at length but the case to include the full scrutiny of the Department of Justice, Equality and Law Reform and the last Minister is worth reading.

On Thursday, 28 March 2002, six days after the guillotining of the Tribunals of Inquiry Bill, this House debated a motion to finally establish a tribunal of inquiry into the events in Donegal and it was passed. That day, Deputy Shatter tabled an amendment to the motion which read:

to include in the terms of reference the manner in which the Minister of Justice, Equality and Law Reform, the Department of Justice, Equality and Law Reform and the Garda authorities carried out their functional and statutory responsibilities in respect to the matters referred to in paragraphs (a) to (j).

In no previous tribunal of inquiry – and I have been involved in negotiations for many – has the parent Department been excluded from scrutiny. It was an extraordinary omission – deliberately and shamefacedly forced through this House in the dying days of the last Dáil by way of guillotine. It is not too late. There is still an opportunity for us to undo that wrong and to address the issues that justice requires us to address. I strongly agree with Deputy Costello that the bona fides of the Minister – who I believe to be a man of substance and principle – will be tested by his attitude to this motion. It is well known that many a strong individual has been blinded by the lights of the Department of Justice, Equality and Law Reform. The Minister's predecessor acted like a rabbit caught in those headlights on this matter and others. The test will be whether the Minister can avoid that glare and accept the broadening of the terms of reference as demanded by this motion. I am intrigued and surprised by the Minister's amendment. I am glad there is no outright move to seek to vote down the motion.

However, the amendment does not give us real scope to ensure this investigation is carried out in a way I believe a majority in this House would really like if that opportunity was open. In his amendment, the Minister notes that "the terms of reference place no limitation on the tribunal in respect of the scope of any findings or recommendations it may make, including in relation to any relevant agent of the State". It is true there are no limitations in relation to its findings but is there limitation on the scope of the investigation itself?

The final sentence of the Minister's amendment states that "the House requests the Minister, without prejudice to any request the tribunal may make for an amendment to its terms of reference, to keep under review the need for such consultation in the light of developing circumstances [this is important] and affirms its openness to consider on its merits any proposal by the tribunal to amend the tribunal's terms of reference, notwithstanding any previous decision of the Dáil on the matter". That is a circular argument. The tribunal has already stated, on foot of a formal submission from Mr. McBrearty – one of the people universally recognised as being at the centre of these matters – for an extension of the terms of reference. The tribunal has stated its hands are tied inasmuch as the Dáil has spoken on this matter. Yet, the Minister seems to want to bring it back to the tribunal by saying that if the tribunal wishes to have its terms of reference amended, he is open to that. I ask him to be positive and assertive in allowing this amendment to be made and to have the scope broadened. Otherwise, he will give nothing but false hope to people who were hurt grievously in this matter and will avoid the full and proper investigation and ventilation of these matters.

I wish to raise a further point in relation to an issue which will concern every Member of this House. I wish the Oireachtas Commission had been established. I wish this House had its own separate Vote. I wish the recommendations we have talked about for a long time were implemented, including an established Leader of this House, with an independent Vote, to establish the rights of Members of the House which, I strongly believe, have been circumscribed by others over a very long period. In June 2000, I passed on to the then Minister for Justice information I had received from a person known to me concerning the investigation in Donegal. The Minister passed that information to the Garda Commissioner who ordered an inquiry into these matters by an assistant commissioner. Those matters are now subject to the Morris tribunal and I heartily welcome and support a full investigation.

There is an issue which reaches to the heart of this Parliament and the rights of Members, namely the rights of Members of the Oireachtas to receive information from citizens and the right of those citizens to have their identity protected. Members of the journalist profession hold that right as vitally important. It has already been tested right up to the Supreme Court in relation to the beef tribunal, where whistleblowers gave information to my colleague, former Deputy Dick Spring and to Deputy Rabbitte. That right is very precious to us. It causes me some concern that, in the opening statement of the tribunal, it has set itself the task of "attempting to ascertain the author of these facts and any information which would justify the allegations contained therein and, in that regard, to ascertain the identity of such person and to seek his or her assistance with the work of the tribunal". This House needs to have a very clear view of this issue which has direct implications for information received by Members, at clinics or privately, on a wide range of matters as to whether it can be received in confidence. That right goes to the heart of our rights as a parliamentary democracy.

Ms O'Sullivan

It is one of the cornerstones of civil society that people should feel confident the forces of law and order will deal with each citizen fairly and impartially and that when serious questions are raised in this regard, they will be clearly and comprehensively addressed by the State. This is one of the most serious debates we have had in this House, addressing those questions about the confidence of citizens in the forces of law and order. I support what my colleagues have said about the importance of this tribunal's investigation being absolutely comprehensive, taking in all relevant organs of State, including the ministry, the Attorney General's office and the Garda Síochána. Very serious allegations and questions have been raised but not adequately answered over the years in past investigations. Those matters have not been addressed publicly in any satisfactory way. This debate provides an opportunity to have a fully comprehensive tribunal set up.

As well as the events in Donegal, other questions have been raised in recent events such as the reclaim the streets parade and in the interim report of the Garda Complaints Board on that incident. Public comments on these issues by gardaí and former gardaí, such as on the Joe Duffy radio programme, raise very serious questions which need to be addressed. Public confidence in the Garda Síochána is of the utmost importance and that was the case until relatively recently. It is the responsibility of the Minister for Justice to ensure those questions are addressed. As my colleague, Deputy Costello, has said, it is possible for the Minister, under the Tribunals of Inquiry (Evidence) (Amendment) Act 1998 and in conjunction with the Office of the Attorney General, to initiate a wider debate with the Morris inquiry. Mr. Justice Morris has indicated that he is carrying out the will and decision of the Oireachtas. I believe the door is open to the Minister to initiate a wider inquiry, as we are advocating in this debate. I urge him to make sure the inquiry is wide enough to give satisfaction, clarity and transparency on all the very serious allegations that have been outlined.

As a former member of the Oireachtas Joint Committee on Justice, Equality, Defence and Women's Rights, I am well aware of the work of my colleague, Deputy Howlin and the former Fine Gael spokesperson and former Deputy, now Senator, Jim Higgins, in trying to bring to light the very serious issues in relation to the McBrearty family in particular. It is regrettable that Deputy Howlin has had to raise the issues he referred to regarding the right – the duty – of Members of this House to bring to the appropriate authorities issues properly raised with them as Opposition spokespersons. That very serious issue must be addressed in this debate. I stand over the work of those two colleagues on that committee. They, as well as the public, are owed a full and proper investigation.

I refer to the other aspect of the motion, the question of the McBrearty family having the opportunity to be properly represented and knowing they will not have an enormous bill at the end of the tribunal. It would be a travesty if that family were not properly represented at the tribunal. It appears at present that this will not be the case. I urge the Minister to intervene. It has been done before, as my colleague Deputy Costello said, and there are precedents. The McBrearty family should be properly represented at the tribunal in the interests of justice, the public at large and our confidence that this is a full, transparent and complete tribunal.

That is the second part of our motion before the House. I urge the Minister, because he is new to the job, he is someone who has shown the ability to think for himself and use his judgment, to take the opportunity the motion presents to ensure the tribunal includes the relevant organs of the State. We know there have been previous Garda investigations. We do not know what was involved in those investigations or what happened to them. They were brought to the former Minister for Justice, Equality and Law Reform. They have not been brought before the public in any way that satisfies justice.

As my colleague Deputy Howlin said, the Government amendment does not close all the doors. It is important that there is absolute clarity on the Government's position before the debate is over.

Minister for Justice, Equality and Law Reform (Mr. McDowell)

I move amendment No. 1:

"To delete all words after ‘That Dáil Éireann' and substitute the following:

"having regard to the resolution passed by it on 28th March 2002, providing for the establishment of a Tribunal under the Tribunal of Inquiry Acts, 1921 to 1998, to inquire urgently into certain matters of urgent public importance relating to complaints concerning some gardaí of the Donegal Division;

recalling that these matters are based upon the recommendations of an independent review conducted by Mr. Shane Murphy S.C.;

recognising the authority given by the terms of reference contained in the resolution to the Tribunal to make such findings and recommendations as it sees fit in relation to these matters;

noting that the terms of reference place no limitation on the Tribunal in respect of the scope of any findings or recommendations it may make, including in relation to any relevant agent of the State;

acknowledging that the tribunal, while mindful of the views of Dáil Éireann at the time of the passing of the resolution on the scope of the terms of reference, has expressed itself open to arguments or submissions based on evidence on the desirability of seeking an amendment of the terms of reference;

having regard to the provision in the Tribunal of Inquiry Acts whereby the Tribunal may request such an amendment; and having regard also to the provision in the Tribunal of Inquiry Acts whereby the Tribunal may consent to a proposed amendment, following consultation between the Tribunal and the Attorney General on behalf of the Minister for Justice, Equality and Law Reform,

requests the Minister, without prejudice to any request the tribunal may make for an amendment of its terms of reference, to keep under review the need for such consultation in the light of developing circumstances, and affirms its openness to consider on its merits any proposal by the tribunal to amend the tribunal's terms of reference, notwithstanding any previous decision of the Dáil on this issue."

I welcome the opportunity to address the question of the terms of reference of the Morris tribunal. I have many detailed points to make but let me state at the outset that my only ambition is to protect the public interest and to get to the bottom of what really happened in Donegal. Before I go further I wish to commend the tribunal on the work it has done to date. It is clear from the detailed opening statement in Donegal earlier this month that it has a mammoth task ahead, but that already it has a great appreciation of the issues and a clear understanding of the sequence of events.

I want to reiterate what I have said on many occasions and what the Ceann Comhairle has said. It is a matter of grave concern to the Government, as it is no doubt to the members of the Opposition and right-thinking members of the public, that allegations of serious impropriety and wrong-doing have been made against members of the Garda Síochána. I join members of the Opposition in seeking to get a complete picture of events. It is of the utmost importance that the truth is established and that public confidence is restored in the Garda in so far as it has been affected by the events in Donegal. It is particularly important that this is done as quickly as possible.

In conducting any debate on the matter at this time, however, I must reiterate the need for caution in what is said on both sides of the House. I do not need to remind all Members that there are a number of criminal and civil cases before the courts which are directly relevant to the questions at hand and the risk of prejudicing those proceedings is great.

The Morris Tribunal of Inquiry, established on foot of resolutions of both Houses of the Oireachtas, is charged with investigating some of the most serious allegations ever levelled against the Garda Síochána, both in terms of the nature of those allegations, their extent, their implications for the force, and their effect on public confidence on what has long been a valued and trusted institution of the State, an institution which has a central position in our criminal justice system. Its establishment arose from a decision by my predecessor as Minister for Justice, Equality and Law Reform to appoint a senior counsel, Shane Murphy, a nominee of the Bar Council not chosen by the Department, to conduct an independent review and undertake a thorough examination of allegations that members of the Garda Síochána in the Donegal Division had engaged in criminal, unethical or unprofessional behaviour, particularly in the context of the investigation into the death of Mr. Richard Barron and finds of bomb-making equipment, to advise on whether all appropriate steps had been taken with due diligence and expedition, and to advise on what further measures, if any, might now be taken to bring to account at the earliest opportunity, so as to address public concerns, those who engaged in criminal, unethical or unprofessional behaviour.

A key recommendation of Mr. Murphy was the establishment of a tribunal of inquiry, and his report suggested the elements which might go to make up the tribunal's terms of reference. All of Mr. Murphy's suggested elements were incorporated in the terms of reference approved by the resolution of this House of 28 March this year. When my predecessor was faced with the situation that had arisen he sought a nomination from the Bar Council of an independent expert to examine all the issues and come back to him with a report. He suggested in that report that there should be a tribunal of inquiry and suggested the key elements of the terms of reference which were adopted later by the House. It is not the case that my predecessor, Deputy O'Donoghue, decided to cut out, edit or self-exculpate in any sense. The terms of reference put to the House were those which were suggested to my predecessor by an independent and, as my friends put it earlier in the debate, an eminent senior counsel not chosen by my predecessor.

It is of course open to this House to extend the terms of reference beyond those suggested by Mr. Murphy's report, although at the same time it cannot be lightly overlooked that those suggestions were based on a detailed examination of an extensive volume of documentary and other material, and a careful consideration of the complex issues to which they gave rise. I stop there again to make the point that Mr. Murphy had the advantage over nearly everyone in these Houses of having seen the documentation available to the various organs of State. In those circumstances—

Mr. Howlin

Only the documentation, he did not speak to the witnesses.

Mr. McDowell

He had the advantage of seeing everything that was made available to him.

Mr. Howlin

What was available?

Mr. McDowell

He was given full access to the documents that were available to the State. There is no point in the Deputy trying to impugn it or to seek a conspiracy. I am telling the plain, unvarnished truth.

Mr. Howlin

Mr. Murphy is not the Minister.

Mr. McDowell

I know, but the Minister on this occasion, in the face of a blistering attack that he was trying to avoid a tribunal, asked an independent person to examine the issue. That person fixed the terms of reference by identifying the key elements thereof.

An Ceann Comhairle

Please afford the Minister the same courtesy the Deputy received.

Mr. McDowell

The Deputy must realise that person was in a far better position than they were to judge the issues they are now canvassing. Nevertheless, it is the responsibility of this House to decide whether there are additional matters which ought to be included in the terms of reference of the tribunal. The tribunals of inquiry Acts specifically envisaged the possibility of such an amendment, which can be made by a resolution of both Houses arising from one of two possible developments. Either the tribunal can, in consultation with the Attorney General acting on behalf of the Minister, consent to a proposed change, or the tribunal can, of its own initiative, request a change. That is the mechanism for changing a tribunal of inquiry's terms of reference. I am not sure that the motion before the House tonight is fully in keeping with that mechanism, but I am not going to quibble over technical details.

I want instead to address the substance of the proposal. It seeks to include in the terms of reference the response of the Garda Síochána, the Department of Justice, Equality and Law Reform, the Minister for Justice, Equality and Law Reform, the Office of the Attorney General, and any other relevant State agencies to the allegations contained in the rest of the terms of reference, in particular the extent to which they exercised the powers and functions available to them fully, properly and in a timely manner. To consider the effect, and intention, of this, it is worthwhile looking at the existing terms of reference. I am not going to go through them one by one, but Deputies looking at them will see that, with one exception which I will come to, they deal with specific allegations of serious wrongdoing, identified by Mr. Shane Murphy as warranting investigation by the tribunal.

The tribunal is charged with inquiring into these definite matters of urgent public import ance, reporting to the Minister for Justice, Equality and Law Reform and making such findings and recommendations as it sees fit in relation to these matters. The last element of the tribunal's responsibilities bears repetition and deserves to be emphasised: the tribunal must make such findings and recommendations as it sees fit in relation to these matters. It seems to me that this element of the tribunal's terms of reference gives it the power to make any findings of relevance to the allegations set out in those terms. In other words, in so far as the tribunal may find wrongdoing on the part of a person in connection with the comprehensive and serious allegations listed in the terms of reference, it can make such findings as it sees fit in relation to the matter, which could certainly, if the evidence so warranted, extend to culpability on the part of any person or agency in contributing to, or neglecting any duty to address, such wrongdoing. The approach of the terms of reference, as approved by the House, is that allegations of wrongdoing are identified and the tribunal is given broad powers to make relevant findings.

I wish to draw the attention of Deputies to the recent proceedings of the tribunal, which are of some significance to this motion. In his recent ruling on an application to vary the terms of reference, Mr. Justice Morris said:

I have already indicated that I am mindful that the present terms of reference of this tribunal have been debated in the Houses of the Oireachtas, which framed the terms of reference after due deliberation and debate, following which a resolution establishing the tribunal was passed by both Houses. I must have regard to that democratic decision in considering applications of this nature and that it is not appropriate to seek an amendment of the terms of reference unless good grounds exist.

He continued:

It is equally clear to me that there may be circumstances in which a tribunal may request an amendment of its terms of reference in accordance with the quoted provisions. If a submission were to be made to the tribunal which the tribunal accepted, or the tribunal determined of its own motion that it could better or more effectively carry out its work by means of extending its terms of reference to include further issues or persons not presently captured within its terms of reference, it could seek an extension. If, by seeking an extension of the terms of reference, the tribunal could thereby secure additional potential material or evidence which would enable it to determine the truth relating to the issues and the facts which have arisen before the tribunal in the course of its work, then it may be appropriate to seek an extension in respect of such issues or persons, particularly if this would help the tribunal to address the issues which are of serious public concern, about allegations that members of An Garda Síochána in the Donegal division engaged in unethical and criminal behaviour and assisting it in fulfilling the task for which it was established. A mere assertion or request for an extension of the terms of reference is not sufficient. As already stated, the tribunal will entertain submissions and argument based on the material and evidence which will be canvassed before the tribunal by any party appearing before it and who wishes to make a submission seeking an extension of the terms of reference. In saying this, I do not wish to preclude myself from exercising the statutory power vested in me to seek an extension of the terms of reference if, at any stage during the course of the tribunal's work, I believe this to be necessary. For the moment, I do not think it is appropriate to act on Mr. Frank McBrearty's assertion because I believe it is too general in its nature and scope and premature in its timing. Mr. Frank McBrearty senior or anybody acting on his behalf may at any stage renew this application in accordance with the procedures which I have indicated.

He went on to say that it is also open to the Minister for Justice, Equality and Law Reform to seek, through the Attorney General, to amend the terms of reference of the tribunal.

Mr. Costello

He can do it primarily through this House.

Mr. McDowell

I want to make clear that it is not the case that something is being ruled out. The Government is not seeking to pre-empt anything tonight and it is not trying to escape anything. It is simply the case that the Government, for the reasons I have just mentioned, believes the present terms of reference are adequate and appropriate for the purposes of the tribunal.

The approach taken in this motion is substantially different, in that, so far as I know, no substantive allegations have been made against the persons or agencies sought to be included in the terms of reference. It may be that substantive allegations will be made, but no such allegations have been made so far. I can say without equivocation that any action or inaction of those persons or agencies relevant to any finding of wrongdoing should be determinable by the tribunal, as should any other relevant factor. However, that is what was sought to be achieved by the broad remit given to the tribunal in its power to make such findings and recommendations as it sees fit in relation to these matters.

The exception I mentioned in the terms of reference, or what might be regarded as an exception, is the reference to the effectiveness of the Garda Síochána's complaints inquiry process vis-à-vis the complaints made by Mr. Frank McBrearty Senior and his family between 1997 and 2001. It must be borne in mind, however, that what is at issue here is, to the extent that it is an exception, an exception that proves the rule. I am at pains to make clear here, as I am on every other matter before the tribunal, that I am not in any way commenting on the substance of the issue, as to the extent to which the statutory system for the investigation of serious complaints made against members of the Garda Síochána worked effectively. I do not see that there is an equally identifiable and specific issue to be addressed in relation to the persons and agencies referred to in the motion. As I have argued, the tribunal has a broad power to make such findings and recommendations as it sees fit, so that such persons and agencies are not immune from adverse findings based on evidence. There is no limitation on the tribunal's scope to find fault.

The Government's amendment to this motion recognises that this position should be kept under review. I cannot rule out the possibility that there may be a need to change the terms of reference and I have no difficulty with the House calling on me to keep the need for such change under review. Equally, while I know the tribunal is open to considering the case, based on arguments or submissions, for the tribunal to request a change in the terms of reference, I am conscious that the tribunal has indicated that it is mindful of the views expressed by this House when an amendment along the lines contained in this motion was previously rejected by it. It is possible that the tribunal might consider, on evidence, that there is a case for such an amendment, but might hesitate to appear to contradict a clear view of this House. The Government's amendment makes clear that the House is completely open to considering any proposal of the tribunal for change, even if the House has previously considered the matter. The way is left clear, therefore, for any appropriate proposal for change to be brought to the House. I will conscientiously discharge my duty to keep under continuing review the need to initiate consultation with the tribunal, through the Office of the Attorney General.

I must again refer Deputies to legislation in dealing with the second issue in the Labour Party's motion, the question of legal costs for the McBrearty family. The question of costs is governed by the Tribunals of Inquiry (Evidence) (Amendment) Acts, 1921 to 2002. The Acts allow a tribunal which is of the opinion that, having regard to its findings and all other relevant matters, there are sufficient reasons rendering it equitable to do so, to order the whole or part of the costs of representation of a person appearing before it to be paid. In other words, it is a matter for a tribunal at the completion of its affairs to make its determination in relation to the issue of costs. Anyone who has read the Salmon report on tribunals of inquiry will appreciate that the general pattern is that those who co-operate with a tribunal in good faith, regardless of whether their evidence is accepted or rejected, or whether they stand condemned or approved in the final analysis, are entitled, in general terms, to their costs. This is because of the imposition that any other practice would place on ordinary citizens.

There are good reasons a tribunal makes its decision at the end of its deliberations. The Acts make clear that a tribunal can use its power on determining costs to ensure that people fully co-operate with its proceedings. In particular, a tribunal, when determining whether costs should be paid, may take into account failure to co-operate or to provide assistance to, or knowingly giving false or misleading information to, the tribunal. This is a powerful tool but it is a very suitable one, as we have seen in other cases. It would undermine the work of a tribunal if a decision was made to pay costs in advance. Equity requires that all parties to a tribunal be treated equally. Not only would it run counter to the maxim of equity to seek to guarantee the costs of one party in advance, but it would require me to pre-empt the findings of a tribunal and obviate perhaps its greatest power in its search for truth. If I were to select any group of people, however meritorious, for special treatment and pay their costs in advance, regardless of the effect it would have on the capacity of the tribunal to secure co-operation, how could I look in the eye anybody else who told me he or she was in a similar situation? How could I look him in the eye and say "No", or tell him that from what I have read in the newspapers I would not be so keen on him? How could I go down the road of saying that some people look to me to be decent so they will get a leg up in terms of costs?

Mr. Durkan

That happens in the courts.

Mr. McDowell

No, it does not happen in the courts.

Mr. Rabbitte

Will the Minister give way?

Mr. McDowell

Yes.

Mr. Rabbitte

What the Minister is saying is true normally, but was the tribunal not established expressly for the purpose of finding out whether the allegations made by the McBrearty family and others were correct? The Minister is now treating them as if there were some kind of charges against them.

Mr. McDowell

No, I am not.

Mr. Rabbitte

The purpose of the tribunal was to vindicate them or not to.

Mr. McDowell

That is not what I am doing. It is the exact opposite. In this decision I am not pronouncing on the merits of anybody's proposed evidence. In fact, I am suggesting that to attempt to do so would clearly prejudice the outcome of the tribunal. There are many people, I presume, who could be involved in this tribunal. The terms of reference are not only concerned with the individuals of whom the Deputy is speaking. There are many other people, in relation to such things as the planting of false evidence, who feel just as much impugned by the terms of reference of this tribunal. I cannot go down the road of selecting, on an entirely arbitrary basis, some people to be given access to the Exchequer's resources to participate in the tribunal.

Mr. Rabbitte

How can he expect the average citizen—

Mr. McDowell

Deputy Rabbitte has made his point and now he is being disorderly.

Mr. Rabbitte

How can he expect the average citizen to be pitted against the State, whether it be the Garda, the Government, the Minister or the Attorney General? How can the average citizen—

An Leas-Cheann Comhairle

Please allow the Minister to make his contribution without interruption.

Mr. McDowell

The Deputy is being disorderly. It was possibly foolish of me to allow him to interrupt in the first place. As he goes on his point becomes weaker. His point about the average citizen includes the great majority of the people whose costs may or may not fall to be decided by the tribunal. His very point that the average citizen is at issue here underlines the point I am making, which is that I cannot select one average citizen, as opposed to another average citizen, and tell him he is to get his costs in advance because the Labour Party moved a motion on his behalf.

Mr. Costello

The Minister is missing the point.

Mr. McDowell

Not only would it produce arbitrary and inequitable results, but it would also end up in the Four Courts. If I made a decision of this kind I would have to justify my interference in the tribunal on behalf of one person and not for another person. I cannot and will not go down that road.

Mr. Costello

There is already a precedent for it. The Minister for Health and Children was able to do it during the Lindsay tribunal.

Mr. McDowell

Although it may appear superficially attractive to propose that I make an exception on this occasion, it would be a disastrous mistake. Everybody would end up in the Four Courts while they decided which side they were on of some dividing line between average citizens decided by Deputy Rabbitte and his friends. I cannot go down that road.

Mr. Costello

That is a smoke screen.

Mr. Rabbitte

Why did that not happen in the Lindsay tribunal?

Mr. McDowell

The truth, after all, is what this tribunal is about. I refer the Deputies to the opening statement of the tribunal, particularly where it referred of the question of truth and lies: "One would be closing one's mind to the obvious, or one would be very naive, if after having read these papers one were capable of coming to any other conclusion than that people have lied in relation to virtually every paragraph of the terms of reference." I referred to the fact that the tribunal is facing a mammoth task. In that instance I was referring to the broad and extensive nature of the terms of reference. It is for the tribunal to decide where the truth lies in relation to each of the issues.

Even if it were open to me to intervene in the matter of costs under the legislation, I would not do so. Let me say clearly and unequivocally that I will not make any determination in advance in relation to guaranteeing individual or party costs, nor will I make any statement to the effect that any individual witness or group of witnesses should get preferential treatment, the consequence of which might be to hamstring the tribunal and lessen the possibility of the truth emerging. While I have every sympathy for the McBrearty family – I have met Mr. McBrearty privately – and the financial burden they face, I can only reiterate once more what the tribunal has said in the matter, namely that "[a] similar burden will also fall on many other persons who have already been granted legal representation."

Finally, on the question of representation generally, it is important to remember that a tribunal is inquisitorial in nature, not adversarial. The onus is on the tribunal, its legal team and its investigators to find out the truth. Legal representation for witnesses is to protect their personal interests, not the public interest. I remain open to the question of using the provisions of the Acts to amend the terms of reference of the tribunal, provided it can be shown that the terms of reference as they stand are deficient or restrictive in some way and cogent arguments are made for any amendment, or if the tribunal considers that an amendment of its terms of reference is necessary or desirable. I am not closing the door on anything. I am indicating that I am not adopting a final or decisive attitude to this issue.

From my perspective, there is nothing in the existing terms of reference to prevent the Morris tribunal's inquiring, as it sees fit, into the responses of the Department of Justice, Equality and Law Reform, the Minister for Justice, Equality and Law Reform, the Office of the Attorney General, the then Attorney General, the Director of Public Prosecutions or any other relevant State agency in relation to the matters of urgent public importance listed in the terms of reference. Somebody wondered here why, if that was the case, a different approach was adopted in relation to the Lindsay tribunal. In that case we were dealing with a registered charity, the Irish Haemophilia Society, which was also an incorporated body. As distinct from what one might gather from today's papers, it was a body whose directors wrote to the Government of the time indicating that they might have to wind up the charity because they were faced with legal liabilities that threatened its viability.

Mr. Costello

It is the same principle.

Mr. Durkan

The Minister is on dangerous ground.

Mr. McDowell

It is not the same. We were faced at the time, as the record will show if it is eventually published, with a situation in which the society's directors were legally advised that they would have to wind up the society if they were not given a substantial package of legal aid.

Mr. Rabbitte

That is the plight of most citizens pitted against the State.

Mr. McDowell

Deputy Rabbitte will have plenty of opportunity to speak.

An Leas-Cheann Comhairle

Deputy Rabbitte should not interrupt as the Minister has limited time to speak.

Mr. Rabbitte

Is the Minister suggesting that the McBreartys should register as a charity? Any ordinary citizen pitted against the State is in the same position.

Mr. McDowell

Deputy Rabbitte's arguments are weak and they are getting weaker by the minute. The suggestion that people should register as charities in order to be considered as such mocks the position in which the State found itself in relation to the Lindsay tribunal. Every average citizen, to use the Deputy's phrase, who has sought legal representation in the tribunal is in the same boat as regards costs.

Mr. Costello

Some of them have incurred very substantial costs.

Mr. McDowell

I will not make an invidious discrimination between them at the request of the Labour Party. I would face an impossible task in justifying why one person's evidence was in my view more important than another person's.

Mr. Costello

The Minister has already lost the argument.

Mr. McDowell

The Deputy should consider what would happen to members of the Garda Síochána whose behaviour is at issue. They will say that they too are entitled to a presumption of innocence. I do not know the financial position of all the potential witnesses or people who have been granted rights of representation at the tribunal, but as sure as night follows day, if I start down that path, I will end up in the Four Courts and this House will end up with egg on its face for making the wrong decision. One would rob the tribunal of one of its strongest disciplinary powers. It may be good politics for the Deputies to appear—

Mr. Rabbitte

It is not about politics. That is not fair.

Mr. McDowell

There is no point in barracking. The Deputy will have plenty of time to reply. It may be good politics—

Mr. Costello

The Minister negotiated a similar deal himself.

Mr. McDowell

—but I have to stand up for the public interest in this matter. I cannot distinguish between citizens taking part in this tribunal and I will not do so. There is no point citing a non-precedent as apparent justification.

Mr. Rabbitte

Of course it is a precedent.

Mr. McDowell

It has been suggested in today's newspapers that I attempted to bully the Irish Haemophilia Society over the exact deal the Deputies now want me to replicate in this case. I reject that suggestion and if the records ever come to public attention, they will show I have never attempted to bully anyone on these matters and that I have acted as well as possible. I was accused of having a position different from that of the Minister for Health and Children on tribunals. Someone who makes such allegations, and the Deputies were making them earlier on the Order of Business—

Mr. Rabbitte

This has nothing to do with the motion. Is there anything else the Minister would like to get off his chest?

Mr. McDowell

I am only replying now to the points made earlier.

Ms O'Sullivan

An opportunity the McBrearty family does not have.

Mr. McDowell

I do not know why Labour Party Deputies behave like The Witches of Eastwick and barrack at the end of these occasions.

Mr. Rabbitte

As if the Minister has never engaged in barracking.

Mr. Costello

This is a serious issue.

Mr. McDowell

It is a serious issue. The Deputies look like something from "The Muppet Show", entertaining themselves as they barrack away.

Mr. Howlin

The Minister will have to tell us when to laugh because this is a serious matter.

Mr. Costello

This is a serious matter.

Mr. McDowell

It is a serious matter but I have had nothing but constant barracking. I remain open to consideration of a variation of the terms of this tribunal. I cannot, however, accede to the suggestion about costs. I am motivated in all these matters by the public interest and the Deputies should reflect long and hard on those matters before they suggest otherwise.

Mr. Durkan

At the core of this discussion is the scrutiny of the interests of those accused and the extent to which their interests might not receive due deference in the absence of costs. What will the public think? The Minister knows that every criminal appearing before the Criminal Court automatically gets legal aid. He can say this is not a similar situation but that is a fact. When the public comes to a conclusion, it will look at that situation.

I compliment the Labour Party for introducing this motion and giving us an opportunity to discuss these issues, particularly in view of the fact that they have been aired repeatedly in the past six months outside this House, culminating in the establishment of the tribunal. I compliment Senator Jim Higgins and Deputy Howlin for bringing the matter to the attention of the then Minister for Justice, Equality and Law Reform. It is a matter of concern, however, that immediately afterwards the Minister, or a person to whom the information had been made known, divulged information given in confidence. That sets a serious precedent for both Government and Opposition. The situation had always prevailed where if the Opposition went to a Minister with a matter of concern and brought it to his or her attention privately, the Minister would investigate. It would not follow that someone known to the Minister would make the information available to those against whom charges were made.

I see the Minister shaking his head but this will have serious consequences for the behaviour of Government and Opposition. That precedent cannot be changed. If we go to the Government with a complaint internal to a Department and as a result it becomes public knowledge immediately, there is something wrong. The Government can hold all the consultations it wishes about the subject but that is how it stands.

Mr. McDowell

It is not. Deputies at the time were told that the only way it could be investigated would be if the Minister went to the gardaí with it. The Deputy knows that.

Mr. Durkan

The Minister should not interrupt again—

Mr. McDowell

That is my line.

Mr. Durkan

—because this is getting more serious as time goes on. If that is the case, the presumption is that nothing will ever be investigated again because it might offend someone.

I will refer briefly to legal representation for the McBrearty family and the need for fair play. The Minister pointed out that he would set a precedent by providing for the legal costs and it could mean he might have to provide for the legal costs of everyone else.

Mr. O'Dea

Eventually.

Mr. Durkan

That is right, he might have to do that eventually. Who will determine if that is the right thing to do? When will it be determined that it is the opportune time to intervene and provide for costs in this case?

Mr. O'Dea

The tribunal will do that.

Mr. Durkan

The chairman of the tribunal has already indicated, and the Minister has told the House, that if the Oireachtas so wished, the terms of reference could be broadened. The Taoiseach and the Minister for Justice, Equality and Law Reform have said that if the chairman of the tribunal requests it, the terms of reference may be broadened. We all agree on that. I am concerned, however, about the sequence of events. What will trigger the necessity to introduce payment of the costs? As a certain football commentator says, "We will freeze it there".

There is a suggestion that when this issue was raised, it implied widespread criticism of the Garda Síochána, but nothing could be further from the truth. It is imperative that the public has absolute and total confidence in the Garda Síochána at all times. In all the actions in which it is involved, the protection of the public and property, it is imperative that the public has full confidence in it. It is equally important that the Garda has full confidence in the public and its representatives in the Oireachtas. It does not follow that when questions are raised, it is automatically treacherous or unchivalrous to raise them in these Houses. That is our job.

If it transpires there is a need for an inquiry such as the one we are now discussing, then the Minister should not apologise or tend to be defensive in discussing the subject. All that tends to do is to create a further situation whereby a new culture could emerge and the cue could be taken up by people on all sides, including those who are accusing and the accused. These people can simply take their cue from the Minister and say, "We have come to the conclusion that the Minister is on our side". We should not go down that road.

Everyone in the country recognises the huge debt we all owe the gardaí who have put their lives at risk on countless occasions throughout the country over the past 80 years. However, we should never allow ourselves to get into a position where we are afraid to question something that might go wrong. The Minister is raising his eyes to Heaven as if he were bored. This is not a boredom matter, it is a serious matter. It has been aired repeatedly in the public press over the past six to nine months. It is not sufficient to say a tribunal has been set up, therefore the matter is resolved. That is not the case. We should never arrive at a position in the future in regard to any Department, statutory agency or body whereby there is a tendency not to discuss the issue in case someone is offended.

The Garda Complaints Board has examined in the past incidents such as this. It does not always work because the public does not seem to have full confidence in that process. The gardaí will ask, understandably, why they should give this responsibility to an outside body which does not understand how they operate. It is important, however, to recognise that we live in changing times and we are all under scrutiny. Every aspect of public administration is currently under scrutiny. If we do not allow ourselves to be examined and scrutinised, we will fall into the trap into which many have fallen in the past and further exacerbate the problem. That is not the answer. If we go down that road and become defensive, we will have much more serious problems. The question to which I am referring is whether it is valid to have the gardaí, or any other body for that matter, investigating themselves. The degree to which public confidence supports such a process is highly debatable, particularly as time goes on.

We need at this time to try to bring the tribunal of inquiry to a conclusion as quickly and effectively as possible. I have concerns about the whole system whereby in the course of an inquiry opening charges are made which are left to hang without rebuttal for a considerable time. This can cause huge difficulties for people, whether the gardaí or anyone else. The occasion for an early rebuttal is not there to the same extent. We all read the opening charges and know what is entailed. It is wrong to allow charges hang in the air for up to two years before the accused person has an opportunity to rebut them. This is not the Minister's fault, but it prevails in most similar tribunals of inquiry.

The pivotal role the gardaí have played in the past and will undoubtedly play in the future is something we all recognise. However, we should never forget that no one is above reproach or beyond investigation and no one should feel offended or aggrieved in the event of a tribunal such as this taking place. I am quite certain from talking with gardaí that a huge number of them are anxious to have the matter fully investigated and brought to a final conclusion to ensure that not only is justice done but is seen to be done. I hope that will happen. It is imperative that this happens because when a private citizen, whether wealthy or otherwise, has a query or is aggrieved, he or she is as entitled to have his or her case heard as anyone else. It does not matter what the context or coincidences are, the fact remains that a private citizen is entitled to have his or her case fully examined and his or her position vindicated or otherwise during the course of an inquiry of this nature.

Some of what we read happened in Donegal – I understand fully these are merely allegations at this stage – is frightening. I do not know whether the Minister accepts this. If some of what we recently read about actually happened, then there exists quite a serious problem in a particular area. That will remain to be seen but it is imperative that during the course of this inquiry justice is done and is seen to be done and that there is not a situation whereby similar allegations can be made with any justification in the future. There is an opportunity during the course of this tribunal to lay out the ground work whereby there will be no need for Members to come into the House and raise queries with the Minister for Justice, Equality and Law Reform or any other Minister and it will not be necessary to go down this road again.

Initially when setting out the terms of reference for the tribunal, there could have been more consultation with the Opposition. It would not have done any harm. The fact that we are the Opposition does not mean we do not have a valid view to put forward. It would not have done any harm to have had a greater degree of consultation with the Opposition on this very sensitive subject. It would be beneficial to whatever Government happens to be in power at a particular time if that were done. I hope in future it might be possible out of the goodness of their hearts if the Government were less defensive and perhaps a little more embracing of the views of the Opposition. It is in the interests of all in this House and those under investigation and scrutiny to ensure everything is done fairly, openly and in the best interests of those directly involved and, above all, that the interests of the general public and the common good is upheld at all times.

The Minister referred to reaching the truth, which is important. At this stage one does not want to pre-empt the outcome or what might happen afterwards. While I recognise the restraints upon us when speaking on the issue at this time, when the conclusions are reached, whatever they may be, I presume everyone will accept the outcome. I presume someone will not go to court to challenge the outcome and that the Minister will ensure the conclusions are then implemented, whatever they may be or in whatever form. I presume also that procedures will be put in place to ensure we do not suffer a repetition.

Debate adjourned.