Dáil Éireann debate -
Wednesday, 2 Jul 2003

Vol. 570 No. 3

Leaders' Questions.

Mr. Kenny

The revelations made known by the Taoiseach to the House yesterday in respect of Mr. Justice Flood's resignation have added greater confusion to the issue, and give the impression that the Taoiseach has misled the House. The Attorney General knew of and attended a meeting on 26 May with two other judges in relation to the costs issue on the pending resignation of Mr. Justice Flood. Did the Attorney General inform the Taoiseach of this meeting and, if so, did that not mean that the Government was then in possession of the information that Mr. Justice Flood intended to resign? Why did the Taoiseach give the impression last week, in answer to a number of parties in the House, that he had only just become aware of this information, and that in his breathless rush to impart that information he did not have time to deal with the legal intricacies of what was contained therein? Does this not mean that the information in regard to Mr. Justice Flood saying he wished and intended to retire as chairman of the tribunal was made known to the Taoiseach and the Government through the Attorney General on 26 May, and by formal letter on 28 May, and that the Taoiseach had this information for a month, and that this House and its Members were not so informed by the Government? Does that not constitute a misleading of the House and the withholding of relevant information about the most historic tribunal of recent times?

Can the Taoiseach account for the fact that the Attorney General does not appear to have brought this information to his attention, or, if he did so, that the Taoiseach did not make the House aware of it? Why did the Taoiseach give the impression last Tuesday that he had not become aware of this information until the Cabinet meeting earlier that morning? Does it not mean that the Taoiseach's handling of this issue has been confused, and that he has misled Dáil Éireann?

The Taoiseach

In all the aspects of the tribunals with which I have dealt, I have always been absolutely upfront with the House.

Mr. Stagg

Except this one.

The Taoiseach

I have given all details on all issues. That is why, last week, shortly after we had for the first time discussed the legal issues with the Cabinet, I raised another question involving a different tribunal. In my view, that was the right thing to do. In response to Deputy Kenny's questions, the information I gave yesterday did not cause confusion, but contained the full facts of all of the letters. I could have argued that some of them should perhaps not have been released, but I issued all of them, and I thought that was extremely helpful. At every turn and twist of this matter over the last week or ten days, I have given, either to this House or to the media, the facts as they have moved on.

Deputy Kenny asked me if I was aware of the Attorney General's meeting and of the letter he received. The answer is "yes". I was so aware. I was informed by the Attorney General that he had had a meeting with the tribunal and was expecting a letter from it. I received a copy of that letter on 29 May and passed it to the Secretary General of my Department. However, on 30 May I was made aware of the fact that after discussions between the Attorney General and a member of the tribunal's legal team, the Attorney General was requested not to circulate the letter of 28 May to the Clerk of the Dáil and the Clerk of the Seanad.

Mr. Quinn

On whose authority?

The Taoiseach

This request was made because of a legal error on page one of the letter in relation to a query from the Attorney General as to whether the letter itself was to be copied to the Clerks. The Government was simply complying with the request of the tribunal not to circulate the letter of 28 May.

The media have already examined this matter, and I suggest the Members of this House might also do so. They will see that letters from the tribunal are always either marked as being circulated to the Clerks of the Dáil or the Seanad, or else contain a request for the letter to be circulated. In this case, the tribunal initially asked that the letter be circulated, following which a member of the tribunal's legal team discussed the matter with the Attorney General and requested that the letter not be circulated.

I resent the suggestions that I have in any way misled the Dáil on this or any other aspect.

Deputies

Hear, hear.

The Taoiseach

I do not want to get involved in a blow by blow account of dealings with the tribunal's legal team. While that might not be right for me, I cannot take a position of certainty when people were in a state of flux for whatever reason – I might know those reasons but do not want to go into them. I almost went out and did a press conference in Cork last week, after I had been informed that Mr. Justice Flood had changed his mind, that he was going to deal with the costs as requested by the Minister for the Environment, Heritage and Local Government, Deputy Cullen, and was going to stay on for another two years.

I was within ten minutes of doing a press conference when I got a call from the Attorney General to say that position had changed. I do not want to go into that either, because I spelt out those facts yesterday. However, I will not take the allegation that I misled anybody on this issue. In fact I have been totally upfront on it. Deputy Kenny did not say it in a very strong way, and I appreciate that, but I will not leave it on the record of the House. While the Deputy is entitled to ask questions, in no way have I misled the House. If I were to give a blow by blow account, I would be here answering questions this morning about trying to undermine the tribunal in some way and I am not going to do that either.

Deputies

Hear, hear.

Mr. Kenny

Does this not mean that all the mishandling of the past month has resulted in Mr. Justice Flood having hardened his attitude to the point where the taxpayer could now be exposed to very serious amounts of money in respect of the costs of those who were deemed to have obstructed the hearings of the tribunal? The Taoiseach says he has been open and upfront on all matters concerning this. I have copies of the letters between Mr. Justice Flood and the Attorney General, which were circulated last evening to journalists. The leaders of the Opposition parties got no copies of this correspondence. How can the Taoiseach say that he has been open and upfront in all the details of this matter with the Opposition parties and Members of the Dáil?

Ms O. Mitchell

It is our tribunal

Mr. Kenny

Why were these letters circulated to journalists and members of the media for their information while those of us who are here to represent the people are given no such information? We are now told by the Minister for the Environment, Heritage and Local Government that the legislation to deal with the future elements of the costings of this tribunal are the responsibility of the Minister for Justice, Equality and Law Reform, who is not here.

An Ceann Comhairle

Your minute has concluded.

Mr. Kenny

Is the Taoiseach perfectly happy that there is no impediment preventing the Minister for Justice, Equality and Law Reform bringing forward these proposals? If he has known about this for the past month, why was the legislation not prepared by now so that it could be dealt with before the House rises tomorrow? This is the last occasion on which the Taoiseach will be present in the House until the autumn session, as he has made arrangements not to be here on Thursdays. He should deal with those elements of his confused mishandling of this matter over the past month.

The Taoiseach

I will not go back over the issue of confused mishandling. In the House last week I said: "I am not a legal expert but it has been pointed out to me by many of my legal colleagues that this opens up many issues, which it is probably not appropriate for me to go into now." I also said: "I have not had an opportunity to study all the legalities in the few hours since I have been made aware of these issues." At last Tuesday morning's Cabinet meeting for the first time I was made aware in a detailed way of all the legal issues.

Mr. Allen

In detail.

The Taoiseach

As the week went on that changed a few times.

On the issue of a delay in circulating the letter and the legislation, the Attorney General has been discussing this matter with representatives of the Department of the Environment, Heritage and Local Government and the Department of Justice, Equality and Law Reform since the letter of 16 June, which was the official letter from Mr. Justice Flood. Last week that discussion was brought to the Cabinet in a preliminary way. By Friday we had a detailed legal opinion, which I mentioned at a press briefing outside the House and which I mentioned inside the House yesterday. That legal advice is to the effect that they are quite happy that the legislation can be dealt with.

An Ceann Comhairle

Your time has concluded.

The Taoiseach

There are some other issues and questions on this, which clearly I cannot put on the record. I apologise to Deputy Kenny if the letters were not given to him. They should have been. If they were given to the media they should have been given to the Opposition Leaders.

Mr. Connaughton

Of course they should. We are the last to get anything.

The Taoiseach

As I said yesterday on the Order of Business, I had instructed that they should be circulated. Some other questions came up and if I do not get a chance to put them on the record, I will also circulate those replies.

Mr. Rabbitte

On this matter, the Taoiseach told the House on 24 June in a pre-prepared statement: "I have not had an opportunity to study all the legalities in the few hours since I have been made aware of these issues." He has now told Deputy Kenny that there was a meeting on 26 May arising from which there was a letter written to the Attorney General on 28 May, which the Taoiseach has said he saw on 29 May. He said it was not put into the public domain because there was a letter on 30 May requesting that it not be put in the public domain because the writer was going on holidays.

The Taoiseach

It might be helpful to clarify that I am not saying that. I am saying that the member of the legal team had a verbal discussion with the Attorney General stating that because of the legal error and the other reason I have stated he did not think it should be put into the public domain. The Attorney General then wrote to get confirmation of that, but it was done almost immediately by the legal team. That is what I am saying.

Mr. Rabbitte

However, there was no such impediment on 24 June when the Taoiseach answered questions here. Why did he not tell the House on 24 June about these meetings and the transfer of this correspondence? There was no debarment on doing so then. The letter of 16 June released the Taoiseach from that. That letter made clear that Mr. Justice Flood wanted the information brought to the attention of this House through the clerks, but the Taoiseach made no reference to meetings, contacts from legal personnel at the tribunal or the existence of letters. Deputy Kenny has asked if that is not misleading the House and the Taoiseach still has to deal with that issue.

On 11 June, my colleague, Deputy Gilmore, tabled a question to the Minister for the Environment, Heritage and Local Government, Deputy Cullen, asking whether in the light of media speculation any changes were planned in the Flood tribunal. The Minister stated this was not the case. That was on 11 June, which was long after these discussions had been initiated and long after the letter of 28 May had been transferred to the Minister for the Environment, Heritage and Local Government, Deputy Cullen, at the same time as it was transferred to the Taoiseach.

An Ceann Comhairle

Your time is concluded.

Mr. Rabbitte

I was interrupted. There was injury time.

An Ceann Comhairle

The Chair has allowed almost a minute for that interruption.

Mr. Rabbitte

May I ask the Taoiseach about the press conference he almost gave in Cork? He was almost going to give this press conference just as he was almost going to give us information, but he almost did not quite get around to it.

The Taoiseach

I did not say that.

Mr. Rabbitte

The Taoiseach then went on to say that at stage he thought Mr. Justice Flood would deal with the question of costs, just as the Minister for the Environment, Heritage and Local Government, Deputy Cullen, has asked him to do in the letter.

An Ceann Comhairle

I ask you to conclude and allow the Taoiseach to respond.

Mr. Rabbitte

Just let me finish the sentence.

An Ceann Comhairle

The Standing Orders exist for you, Deputy Rabbitte, just like everybody else.

Mr. Rabbitte

However, the Minister for the Environment, Heritage and Local Government, Deputy Cullen, did not ask him to do any such thing in the letter.

Mr. Cullen

I did.

Mr. Rabbitte

In his letter, the Minister made clear that the opposite was the case and the Government did not expect him to deal with the costs. What is the situation?

The Taoiseach

On that issue, I have answered the first point. I did not want to refer to what was in effect a non-letter from the tribunal and therefore be blamed and accused of not co-operating with the tribunal. I abide strictly by the rule in dealing with the tribunal. In the past few weeks there have been issues within the tribunal and I followed this strictly. They said further letters would be required and asked that that letter not be circulated and the letter of 16 June became the effective letter. I stuck firmly to the rule in dealing with the tribunal. I am answering Deputy Rabbitte's question at the moment. I will answer other Deputies' questions during Question Time.

On the second question as to why the Government sought to have Mr. Justice Flood remain as the chairperson and whether we wanted him to deal with the issue of fees, there is a simple explanation. If Mr. Justice Flood remained as chairperson and decided the costs issue, there would be no grounds for any challenge. That is why we wanted him to deal with the issue of costs, as I stated here after the Cabinet discussed the legal issues for the first time last Tuesday week.

However, recognising Mr. Justice Flood's concern about the added burden and strain on him, we were willing to take additional legislative steps. They were the passing of legislation to allow the administrative burden of the tribunal to be delegated to another member, which was offered by the Attorney General. This was clearly a cause of concern to Mr. Justice Flood as is obvious from his correspondence. However, the proposal that this change would take place and Mr. Justice Flood would continue on as chairperson was overtaken by the event of his resignation last Friday. That is the situation in which we find ourselves. It is not of our making but we must react to it in a manner that we see fit to protect the public interest and to ensure the taxpayer does not have to carry the cost of the tribunal. I am satisfied that we will be able to address this issue through legislation. While we cannot eliminate the risk of people suing, we will do our best to ensure they will not be successful.

On Deputy Rabbitte's last question about the press conference in Cork, I do not want to make much of this or get into any conflict with the legal team or anyone else. I was informed last Thursday evening that Mr. Justice Flood had called to the Attorney General. He said a number of things that would not be fair or right for me to say in the House. However, he made it clear that his position on Thursday evening was that he had thought about the matter and was prepared to continue chairing the tribunal. He was also prepared to continue to deal with the costs and go on for another two years. He left to return to the tribunal to write a letter stating that was his intention. Circumstances changed and he telephoned back to say he wanted to think about it overnight and subsequently changed his position.

Mr. Durkan

What happened?

The Taoiseach

I can only keep up with events. I do not make them and I can only report to this House on the basis of what happened. I am absolutely blameless in all of this.

Deputies

Hear, hear.

Mr. Rabbitte

In keeping up with the events, the difference between the 28 May letter and the 16 June letter is a page and a half that concentrates on the legalities. Those are the very issues the Taoiseach says he learned of a few hours before he addressed the House on 24 June. That is the difference between 28 May and 16 June. Mr. Justice Flood gave it as his opinion that he could easily be replaced by another judge and decide the costs issues. There is a dissertation in the 28 May letter on that. The Taoiseach says he only heard about it a few hours earlier.

Is there anything else the Taoiseach wants to tell the House about this entire affair that we do not have to extract from him on a drip-feed basis? The tribunal is a creature of the Oireachtas. The Taoiseach is asking us to do something – I am not clear what he is asking us to do – but he is only drip-feeding information to us as it is extracted from him.

He has not explained why the letter of 28 May is date-stamped in the office of the Attorney General as having been received—

An Ceann Comhairle

Deputy Rabbitte should conclude.

Mr. Rabbitte

—on 6 June, although it was replied to by the same Attorney General on 30 May. Yet, it is date-stamped in an office that caused the fall of a previous Government as having been received on 6 June.

Is there anything else the Taoiseach wants to tell us? Is the Taoiseach trying to get the costs of tribunals under control? After this morning's tragedy in Crumlin Hospital, most Members of the House would agree with that objective. Why does the Taoiseach not tell us if that is the objective rather than telling us bit by bit what is passed on about this matter?

An Ceann Comhairle

I ask Deputy Rabbitte to give way to the Taoiseach.

Mr. Rabbitte

It would be helpful if one were allowed to complete the question without the consistent, hectoring interventions of the Ceann Comhairle.

An Ceann Comhairle

The Standing Order is quite specific. Other Members of the House seem to be able to live within the Standing Order and I ask Deputy Rabbitte to do the same.

The Taoiseach

With his usual inconsistency, Deputy Rabbitte stated that I did not keep the House informed although he started this morning by saying that I came into the House to give unsolicited information last week. He can make up his mind on that. Yesterday, without having been requested to do so, I offered to make the letters available and I did.

Mr. Rabbitte

The Taoiseach did not make them available to me.

The Taoiseach

Nobody was asking me to produce the letters.

Mr. Rabbitte

The Taoiseach made them available to the press.

The Taoiseach

I said I was sorry I did not do that. I have already answered and apologised for that. I did make them available. I did not drip-feed information. I do not need Deputy Rabbitte, as he fell out of bed this morning, telling the nation that I misled the House and will not answer questions. I am in here to answer the questions every day and give comprehensive answers—

(Interruptions).

Ms Enright

Except Thursday.

Mr. Sargent

What about Thursdays and Fridays?

The Taoiseach

I spend more hours in parliament than any other prime minister in Europe. I do not need that kind of lecturing from Deputy Rabbitte.

On the issue of the letter of 28 May and why was it received in the Office of the Attorney General on that date, the letter was for the personal attention of the Attorney General. It was an important letter. The date stamp signifies the date the letter is received in a section of the Attorney General's office called the registry. The letter was given by the Attorney General to an official on 5 June. At that stage, the letter, which had been dealt with by the Attorney General's private office, was sent to the registry and was date-stamped on 6 June when it was received. I will give the remaining replies to the Opposition and the press.

Mr. Sargent

In raising the same matter, I wish Mr. Justice Mahon and his colleagues well in the task ahead of them. I thank Mr. Justice Flood for his work on the tribunal. I also wish to thank him for his work as chairman on the Commission on the Status of People with Disabilities which cleared the way for the disability Bill. Perhaps the Government will ensure that his legacy is put in place with the disability Bill soon as it is already long overdue.

Was Mr. Justice Flood pushed or did he jump? Has the Taoiseach learned any lessons to date from the Flood tribunal? Has the report by Mr. Justice Flood been taken on board? The fact remains that if one is associated with Fianna Fáil it helps one to get ahead, even more so if one is corrupt.

Mr. Walsh

What about the shares in the Green Party's back pockets?

Mr. Sargent

Have the Flood investigations had any impact on the way the Government does its business? I am not talking about former Government press secretary, Mr. Frank Dunlop, in that association. The Taoiseach should also apologise to me because he did not indicate to me that he had a meeting on 26 May.

Are there three trays on the Taoiseach's desk – one in-tray, one out-tray and one tribunal correspondence tray? In June 2001, the Taoiseach received a letter from the tribunal requesting help. However, there was a delay in getting back to it on the matter. In January 2002, there was another similar letter. I can understand how Mr. Justice Flood could have been deeply frustrated, not just by the delay in getting correspondence, but also by the mounting costs as those delays continued to impact on the work of the tribunal. Does the Taoiseach accept any responsibility for having wasted taxpayers' money by prolonging the delay in his replies to the tribunal? The tribunal could have handled matters better if it had the resources earlier.

The Taoiseach

To correct the Deputy, I had no meeting with the legal team or Mr. Justice Flood.

Mr. Sargent

He did not tell us.

The Taoiseach

I said that I knew about it. The Deputy's indication is that in some way we frustrated Mr. Justice Flood. I will again put on the record the letter from Mr. Justice Flood in which he refers to correspondence with the Attorney General and the Minister for the Environment, Heritage and Local Government, Deputy Cullen, on his resignation and the reasons underlying it:

I note in the public press and now in the House the vexative statement that action-inaction by the Government in relation to requests from the tribunal for additional judges and other matters has caused frustration and the real issue for my resignation. I wish to state categorically that this is not so. My decision is in no way related to or consequent upon any action-inaction of the Government of any kind. My relation with the Government is through the Department of the Attorney General. I have at all times during my tenure in office had a relationship with the Attorney General's Office which has been exceptionally cordial and co-operative. The allegations that the work of the tribunal has been delayed or frustrated, in any way, by the Government is completely groundless and is nothing to do with my decision to resign. My reasons for resignation are solely set out in correspondence with the Attorney [General] and Minister Cullen. I trust this clarifies the matter. Signed: Feargus M. Flood.

With regard to the lessons learned from the tribunal, I led the last Government that brought in the most legislation since the foundation of the State – rightly so – to deal with all of the issues surrounding corruption, planning and ethics.

Mr. Sargent

I listened carefully to what the Taoiseach said. I do not recall him saying that Mr. Justice Flood was not frustrated. He may have been giving various reasons as to why he resigned. It is what he is not saying that is also interesting. Does the Taoiseach accept that the Oireachtas has a particular interest in this matter, given that it is one of the few opportunities we have to bring about change rather than talk about something or ask the Government to do something about it? For that reason, the setting up of the tribunals by the Oireachtas is of particular interest.

Does the Taoiseach further accept that the Government has a job to take action beyond that, and that the kind of action that is needed, aside from the various legislative measures that the Government has introduced, which I acknowledge, still misses the point that temptation, corruption and greed are still endemic in the planning process? Does the Taoiseach accept the fact that the Government continues to guarantee that windfall profits from land owners and land speculators accrue not to the community but to—

An Ceann Comhairle

The Deputy has moved away from his original question.

Mr. Sargent

I am dealing specifically with the Flood tribunal and the lessons arising. If we do not learn from it then we are wasting taxpayers' money. On that basis, I asked the Taoiseach whether he would remove the corrupting influence of gross profiteering from land rezoning by, for example, taking on board the ideas – whatever about the legislation – proposed in the recent Green Party sponsored Planning and Development (Amendment) Bill 2003?

An Ceann Comhairle

The Deputy's time has concluded.

Mr. Sargent

That is the way to tackle corruption because it removes the temptation to profiteer with unwise rezoning. Will the Government act on this?

The Taoiseach

On the general point, I am sure there will be ongoing recommendations coming from the reports on which the Government will act. I have always stated that. Whether it was in regard to the conclusions of Mr. Justice McCracken or issues in regard to the Moriarty or Flood tribunals, the Government has already introduced legislative measures. I accept that legislation can always be improved upon.

The Deputy made a reference in his first question to what I did not say.

Mr. Sargent

Not to what he did not say.

The Taoiseach

I am not too sure to what he was referring. He specifically mentioned, as he did on two previous occasions, the appointment of judges. I wish to refer to a letter of 15 May 2002 from John Gallagher, the senior counsel to the Tribunal of Inquiry into Certain Planning Matters and Payments to the deputy director of the Office of the Attorney General. The letter stated:

As I indicated on the telephone my view which is shared by Mr. Justice Flood is that the instrument should not be made until after Mr. Justice Flood has submitted his interim report to the Oireachtas. I will communicate with you in due course in relation to the operative date for the new instrument and in the meantime would ask that you communicate with the Department concerned to ensure that the amending instrument is not signed until after its agreement with the sole member as to the operative date.

There was no delay on the part of the Government. I thank the Deputy for giving me an opportunity to kill that one because I also saw that in the newspapers.

Mr. Sargent

I am glad I asked that question.

The Taoiseach

That was mentioned in the newspapers and it was never the intention of the Government to do other than co-operate fully.

Mr. Sargent

Were the resources made available for him to do it?

The Taoiseach

I am pleased to be able to answer these questions and I hope that I have responded to the issues that were raised.

In the House yesterday people said that the big issue in the weekend newspapers was that Mr. Justice Flood had been frustrated by the Government. Since I answered that one, they have moved on to another issue. I have tried to answer all these issues as best I can in the limited time available.