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Dáil Éireann debate -
Tuesday, 15 Apr 2014

Vol. 838 No. 1

Commission of Investigation (Certain Matters relative to An Garda Síochána and other persons) Order 2014: Motion

I move:

That Dáil Éireann approves the following Order in draft:

Commission of Investigation (Certain Matters relative to An Garda Síochána and other persons) Order 2014,

copies of which Order in draft were laid before Dáil Éireann on 15 April 2014.

At its meeting on 25 March, the Government considered very serious matters relating to An Garda Síochána. The implications of these were potentially of such gravity that the Government decided to establish a statutory commission of investigation to examine all matters of public concern relating to the issue. In the context of ongoing legal proceedings in a particular case, it was learned that a system was in place in a large number of Garda stations whereby incoming and outgoing telephone calls were recorded. From the information available, the practice of making recordings was in place for many years and was discontinued in November 2013. It is now public knowledge that the case in question is the Bailey case.

Subsequently, at its meeting on 1 April, the Government decided to appoint Mr. Justice Nial Fennelly, currently serving as a judge of the Supreme Court, as chair of the commission of investigation.

The Government also decided that An Garda Síochána and the Department of Justice and Equality should ensure the retention and preservation of all tapes, complete a full inventory of all tapes, and devise arrangements to ensure that tapes can be accessed as required and in accordance with the law. The Government also decided to establish a new Cabinet committee on justice reform to oversee the development of proposals for an independent police authority, and other associated reforms to the policing and justice system.

We need to ensure full public confidence in, and support for the Garda Síochána, given the very difficult and important task the force fulfils. We therefore wish to see a full public debate on the issue of policing and justice reform, and the Government will bring forward proposals for a public consultation process on this issue in the coming weeks. The Government is strongly committed to these reforms and intends to have new structures in place later this year, including the appointment of a new Garda Commissioner by open competition and the establishment of a new independent policing authority. Further evidence of this commitment is the establishment of the Cooke and Guerin inquiries, both of which are due to report very shortly.

On 8 April the Government published detailed terms of reference for the commission. The terms of reference incorporate the views conveyed by the Oireachtas Committee on Justice, Defence and Equality in its letter to me on 3 April. The terms of reference of the Commission are to investigate and report on the operation of Garda Síochána telephone recording systems and on the following matters in particular: (a) to identify all Garda stations in which telephone recording systems, to record calls other than 999 calls to the emergency call answering service, were installed and-or operated by An Garda Síochána between 1 January 1980 and 27 November 2013 and to establish an inventory of those Garda stations so identified to include: (i) the date of initial installation, where such installation occurred at a date between 1 January 1980 and 27 November 2013; (ii) to report whether any such installations were already in existence on 1 January 1980; (iii) the duration for which telephone recording systems continued in operation in each such Garda station; (iv) the date on which telephone recording systems were terminated or removed from each such Garda station; (b) to establish the immediate circumstances surrounding the installation of telephone recording systems operated by An Garda Síochána at the said Garda stations and to establish what authorisation was sought or obtained by An Garda Síochána for such installation, and including the funding, installation, maintenance and-or upgrading of those telephone recording systems, to include the public procurement procedure followed in 1996 and further in relation to the installation of the NICE recorder system in 2008; (c) to establish how the said telephone recording systems operated by An Garda Síochána were managed and to establish what use, if any, was made by An Garda Síochána of any information collated by the said telephone recording systems; (d) to identify the organisation and structures in place for the installation, operation and management of the said telephone recording systems and in the storage, access, analysis and use of any information obtained from them; (e) to investigate and report on the level of knowledge of the existence, operation and use of the said telephone recording systems within An Garda Síochána; (f) to investigate and report on the level of knowledge of the existence, operation and use of the said telephone recording systems within the office of the Minister for Justice and Equality, the Department of Justice and Equality, the Office of the Attorney General, the Chief State Solicitor's office, the Office of the Director of Public Prosecutions, the Office of the Data Protection Commissioner and the Garda Síochána Ombudsman Commission; (g) to establish whether the installation, operation and use of the said telephone recording systems were authorised by law; (h) to establish whether any telephone conversations between solicitors and their clients were recorded by the said telephone recording systems; (i) to establish whether any information obtained from the said telephone recording systems by An Garda Síochána was used by it either improperly or unlawfully and, in particular, whether any recordings as may have been made by An Garda Síochána of solicitor-client telephone conversations were used for any purpose whatsoever; (j) to establish where the recorded information obtained from the telephone recording systems operated by An Garda Síochána was stored since the creation of same and to establish how such information was accessed and analysed by An Garda Síochána; (k) to establish whether any of the recorded information has been destroyed; (I) to establish any instances during the relevant period where the Office of the Director of Public Prosecutions made use of the data and information produced by the said telephone recording systems for any purpose; (m) in particular, to identify and review all recordings in the possession of An Garda Síochána emanating from the Garda telephone recording system at Bandon Garda station or otherwise, which relate to the Garda investigation into the death of Sophie Toscan du Plantier and to establish whether those recorded telephone calls, and any other acts or events in the course of the said Garda investigation, disclose any evidence of unlawful or improper conduct by members of An Garda Síochána in connection with that investigation; (n) to investigate and report on the furnishing to the Minister for Justice of a letter dated 10 March 2014 sent by the former Garda Commissioner, Mr. Martin Callinan, to the Secretary General of the Department of Justice and Equality; (o) to investigate and report on the sequence of events leading up to the retirement of the former Garda Commissioner, Mr. Martin Callinan, on 25 March 2014; (p) in the event that any matter arises from the report of the Inspector of Prisons, Judge Michael Reilly, pursuant to section 31 of the Prisons Act 2007 into all the circumstances surrounding the recording of telephone conversations between prisoners and their solicitors, which appears to require further investigation in the public interest, the commission may investigate and report on same; (q) to report on any other matters of concern arising from its investigation of recordings to and from Garda stations and to make any further recommendations as it sees fit.

The commission shall exercise discretion in relation to the scope and intensity of the investigation it considers necessary and appropriate, having regard to the general objective of the investigation. In particular, the commission shall have the discretion to decide to limit its investigation to samples of recordings in the light of what is disclosed as the investigation progresses. The commission's terms of reference, as approved by the Government, envisage a final report to the Government not later than 31 December 2014, subject to section 6(6) of the Act.

I am aware that there have been calls for earlier reports on some elements of the investigation, particularly the sequence of events leading up to the retirement of the former Garda Commissioner. However, it is important to recognise the independence of the judge and therefore the Government believes it is more appropriate to give the commission full flexibility on the nature, timing or sequencing of any part of the investigation. The staffing requirements of the commission will reflect the scope of the terms of reference and the ambitious timescale involved. The exact requirements of the commission will become clearer once it is established and begins to scope out its work in more detail. The appointment of staff and their terms and conditions will be subject to approval by me, with the consent of the Minister for Public Expenditure and Reform. In addition to direct staffing costs, set-up and ongoing costs will arise from the establishment of the commission's office, ICT and administration, travel and subsistence, etc. Specialist expertise may also be required given the subject of the investigation.

Based on an initial assessment, a cost of €2 million is deemed a reasonable estimate for 2014 and it is proposed to provide for this from the Vote of the Department of the Taoiseach. This estimate is based on the assumption that the commission completes its work by the end of 2014, as specified in the terms of reference. If it were deemed necessary to extend the commission's work beyond that date, then further staffing and other costs will of course arise. In addition to salary and administration costs, third party costs are also likely to arise. In accordance with the provisions of the Act, following consultation with the commission and with the consent of the Minister for Public Expenditure and Reform, I will have guidelines prepared concerning this area. The extent and timing of any such costs are difficult to estimate at this stage.

My sole interest in addressing of these matters, which are rightly of deep public concern, is to establish the truth. It appears that the practices which will be investigated by the commission may have been going on for 30 years. I believe that the establishment of the commission is the most appropriate, timely and cost-effective way of getting to the truth. I believe that the commission's comprehensive terms of reference will ensure that all relevant issues are investigated in a thorough and timely manner and I commend the motion to the House.

The controversies of recent months have been challenging for the Garda, the legal system and the Government. Many of the issues which have caused this controversy have their roots in the events and practices of the past, long before this Government came to power. None the less, it has fallen to this Government, of which the Labour Party is part, to deal with these issues. My priority as leader of the Labour Party has been and remains to ensure we get to the facts as quickly as possible; that the parties involved, including the whistleblowers, are dealt with fairly; that we rectify the injustices of the past; and that we put in place structures which will serve well our citizens and the Garda into the future.

On behalf of the Labour Party, I am pleased to support the resolution before the House, which sets out the terms of reference for the investigation to be carried out by Mr. Justice Nial Fennelly. There are three principal elements in the terms of reference. If the terms are agreed by this House and the Seanad, the commission will be asked to investigate and report on the operation of telephone recording systems by the Garda and the Prison Service; the specific implications of the tapings related to the Garda investigation into the death of Ms Sophie Toscan du Plantier in west Cork in December 1996 and related matters; and the sequence of events leading up to the retirement of the former Garda Commissioner, Mr. Martin Callinan.

I first became aware of the widespread recording of telephone calls to and from Garda stations on the morning of Tuesday, 25 March last when the Taoiseach made me aware of information which had come into his possession. I was shocked by what I was told. I had no hesitation in agreeing with the Taoiseach to recommend to colleagues that a commission of investigation be established to establish what happened and why it happened. Many more facts have come to light since the Cabinet made its decision. We now know something of the scale of the recordings and the Garda stations in which they occurred. We know something of the circumstances in which new equipment was purchased a few years ago to continue and update the practice. We have heard from some of those who were involved in operating the system.

There is still a great deal we do not know. We do not know for sure what the intended purposed of the recording system was. We do not know if recordings were used during the course of criminal investigations. In fact, we know very little about the use, if any, which was made of the recordings. We also know little or nothing about the content of the tapes. These are just some of the questions we are asking the commission to investigate. They are important questions. It is important from a historical perspective that we know what happened in the past. I refer, for example, to the timeline and the sequence of events. It is also important to get an assessment of the implications for the operation of the criminal justice system. We need a dispassionate assessment of prosecutions taken or not taken.

The terms of reference invite the commission to express a view on whether the recordings were authorised and whether the making of recordings in these circumstances is lawful. It may be that the facts disclosed to the commission will allow the judge to come to a clear decision on whether the recordings were lawful. It would be wrong for me to express an opinion on that matter and I will not do so. Having said that, it is clear that this is an area where there is a great deal of grey and not so much black and white.

We live at a time when many organisations and individuals create, capture and store a great deal of information about the everyday lives of almost everyone. Banks, supermarkets online retailers, travel companies and many other bodies can create an accurate picture of our lifestyle with minimal effort. It is a stark fact that Internet providers and telecommunications companies have assembled more information about each of us as individuals than is known to our closest friends. Does the accumulation of this information amount to surveillance or bugging? Is it merely part of the provision of a service to customers? Much of this information is doubtless of no consequence. On the other hand, some information might be useful in determining whether criminal proceedings should be taken and later in proving or disproving guilt.

The use of electronic records in the legal system and in crime prevention is laced with difficulty and dilemma. To what extent is the State - in most cases, this means the Garda - entitled to infringe on an individual's right to privacy to prevent or prosecute crime? When is the accumulation of personal information lawful and when is it unlawful? Is it reasonable to seek to distinguish between the two? These are big questions. They are infinitely more pertinent now, in this age of information, than they have ever been before. The Oireachtas most recently sought to grapple with these issues when the Criminal Law (Surveillance) Act 2009 was passed five years ago. A great deal has happened since then, not least in the development of technology. In my view, it would be timely to review the operation of the 2009 Act and other relevant legislation and practice.

The second issue dealt with in the terms of reference is the investigation into the tragic death of Sophie Toscan du Plantier. The House will be aware that no prosecution has been taken in respect of the death of Ms du Plantier. However, some ancillary matters have been dealt with before the courts, including an application for extradition by the French authorities and civil cases currently in hand. At various intervals, we have seen press reports which allege activity on the part of the Garda which, if true, would be very disturbing. As a result of discovery made during the course of civil proceedings, we know that recordings were made in Bandon Garda station which are relevant to the investigation of the death of Ms du Plantier. On foot of such information as is already in the public domain, the Government has decided that further investigation is needed. Specifically, the commission will be asked to establish whether those recorded telephone calls, and any other acts or events in the course of the Garda investigation, disclose any evidence of unlawful or improper conduct on the part of the force.

It is time for the Garda investigation to be subjected to the light of public scrutiny. There are too many unanswered questions and too much innuendo. It is time for a full accounting in respect of the Garda investigation. I hope the commission can be of assistance in establishing the facts. I am conscious that the person who murdered Sophie Toscan du Plantier is, in all likelihood, still at liberty. I am also conscious that her friends and relatives, not least her parents, Georges and Marguerite Bouniol, continue to grieve for her and thirst for justice. This new investigation will not bring Sophie back. It will not bring the person who murdered her to book. I hope it will answer some of the questions her family and friends and others have been asking for many years.

The third issue to be dealt with by the commission is the events leading up to the retirement of the Garda Commissioner. I fully accept that the retirement of the Garda Commissioner was a matter of great consequence. It is clearly in the public interest that the matter be teased out in full. Many of the facts have been put into the public arena by the principals concerned or others acting on their behalf, either directly or indirectly. It is important for all those concerned to be given an opportunity to account in person for their actions. I would like to make it clear that this is an important issue, as the Garda Commissioner holds one of the most important positions in our democratic state.

The public is entitled to know why the Garda Commissioner left office earlier than he originally planned. The public is entitled to the full facts. As Deputies will know, members of the Government who were party to these events have given accounts of what they knew and did in the period leading up to the Commissioner's retirement. I have stated publicly that I accept what colleagues have said on these matters. I am happy to rely on the accounts given. I fully expect that, when he has heard from all the parties, Mr. Justice Fennelly will be able to set out the sequence of events in full in order that the public can make its own judgment.

Ireland has changed a great deal in recent years. For many decades, we lived in a society where the authority of people in certain positions was rarely questioned. The pillars of society commanded respect and obedience without debate. This is no longer the case. People no longer accept that the priest, the politician, the teacher or the garda is entitled to tell them what to do purely by virtue of the position he or she holds. The garda of previous decades could expect that his or her authority would be accepted without question, that his or her instructions would be followed, that his or her judgment would be respected and that his or her way of doing things would be afforded a measure of latitude. The garda in today's Ireland inhabits a completely different environment where trust must be earned, tolerance and patience must be exercised, professionalism is expected at all times and mistakes must be accounted for. It is a much more hostile environment in many ways. It is an environment of competing criminal gangs that use violence without hesitation, in which the abuse of drugs eliminates all standards of decent behaviour, and in which a gang of robbers will kill a garda in the course of their criminal activity.

The changed nature of our society and the changing nature of crime have required a radical shift in policing. The Garda is now better trained and better resourced than ever before. The statutory underpinning of the force has also changed. When he introduced the Garda Síochána Act 2005, the then Minister for Justice, Equality and Law Reform, Michael McDowell, looked to put in place what he described as a template for policing in the 21st century. There is much that is good in the 2005 Act. The Labour Party supported many of its provisions. The Act put in place the Garda Síochána Ombudsman Commission, the Garda Síochána Inspectorate and the local policing committees. All of these have contributed to making the Garda more open and accountable.

The then Minister failed to act in one important regard, however. He refused to put in place a mechanism for civilian oversight of the Garda. He refused to address what many of us see as a crucial weakness in our system, namely, the relationship between the Minister for Justice and Equality and the Garda Commissioner. Section 80 of the 2005 Act provides that "the Garda Commissioner shall account fully to the Government and the Minister of Justice, Equality and Law Reform for any aspect of his or her functions".

The result of this provision is that the Garda accounts to the Minister largely in private and in secret. The Minister represents the views of the Garda to the Dáil and the Commissioner defends the policies of the Government, including the Minister, in public. The closeness of this relationship is of a time when the security of the State was under threat. Those days are gone and the 21st century demands a wholly new model.

Since 2000, the Labour Party has argued the case for a Garda authority, or policing board, that would exercise many of the powers and carry many of the responsibilities currently vested in the Government. My colleagues, the Minister for Public Expenditure and Reform, Deputy Brendan Howlin, and the Minister for Communications, Energy and Natural Resources, Deputy Pat Rabbitte, have both articulated the case for a Garda authority on innumerable occasions over the past decade and more. It is with some satisfaction that we welcome the decision of the Government to set up an authority. It is a pity it has taken so long and that it was resisted by others for so long. However, it is better late than not at all.

The new Garda authority should set priorities for the Garda and assist in drawing up plans for policing. It should hold senior gardaí to account for the implementation of policy and act as an interface for the community as a whole.

Let me be clear. I want to move to a position where the policies and priorities of the policing service are set by the representatives of the community as a whole and not just the Government. Of course, the view of the Government should weigh in the mix, but it is only one view. The service exists to serve the community as a whole and it should be accountable to the community as a whole.

I am very happy that Government has agreed to set up a Garda authority before the end of the year and I look forward to playing my part as a member of the Cabinet committee that has been put in place to oversee its introduction. There are open questions we will debate over the coming months and we should take the opportunity to engage in public debate on those. What role should the authority have in appointing the Commissioner and other senior gardaí? Who should sit on the authority? Should public representatives sit on the authority and, if so, how many? How should matters of national security be dealt with?

In all of this, I must emphasise the critical point that this is not change for the sake of change. It is not simply a question of adding one more institution to the several that already exist, but rather, it is a radical overhaul of our system of policing, a change that will be good for the Garda, politics and, above all, citizens.

I move amendment No. 1:

To insert the following after "15 April 2014":

"the Commission will report in modular form at 8 week intervals; the opening modules shall be ‘the handling of correspondence and information by the Department of Justice and Equality and the administration procedures in place within the department governing the transfer of knowledge from officials to the Minister; and

the sequence of events leading up to the retirement of the former Garda Commissioner Mr. Martin Callinan’; and

subsequent modules shall be sequenced according to the Member of the Commission, Honourable Mr. Justice Nial Fennelly, Judge of the Supreme Court."

At this juncture, we need to take stock of exactly where we are. I was a little bemused to hear Fine Gael Deputy John Deasy say publicly on radio that if a bomb exploded within the Department of Justice and Equality, we might not hear about it for two years. When one thinks about this a little further, one realises he may not be wrong. While the statement sounds shocking, what we have heard over recent weeks and months from the Department of Justice and Equality gives us all cause for great concern. At present, there is the Cooke inquiry concerning GSOC and the Guerin inquiry on the matters contained within the dossier that was passed to the Taoiseach. We now have the commission of investigation and a Cabinet sub-committee is overseeing the Department of Justice and Equality. Never before did we have the latter.

Some weeks ago, on 25 March, the Taoiseach came into the Dáil to make an announcement on this matter. His press statement read:

At its meeting today, the Government considered a new and very serious issue relating to An Garda Síochána. The implications of this matter are potentially of such gravity that the Government has decided to set up a statutory Commission of Investigation into this matter of significant public concern.

At that point, there was no mention of the Bailey case whatsoever. We said the Taoiseach hyped the story but we were dismissed and rubbished. There was no rush to the courts, nor was there any queue outside the courts. No one was laying applications before the courts seeking declarations of miscarriages of justice. We must ask why all this happened. All this occurred against a background involving the Government scrambling around trying to hold itself together because it was at sixes and sevens over the penalty points debacle, the whistleblower controversy and the need for a no-holds-barred apology to be given to former Garda John Wilson and serving Sergeant Maurice McCabe. We debated this many times in the Dáil. It was quite unseemly that we received an apology from the Minister for Justice and Equality only weeks later. It should not have taken so long. The public was very disappointed by the Government's dismissive attitude displayed towards the whistleblowers and decent public servants. Consider the message this sends to other potential whistleblowers.

Coming quickly on the heels of these events was the resignation, retirement or premature departure of former Garda Commissioner, Martin Callinan. It is not just any old day or week that this happens in this country. It had not happened for a very long time. We received no proper explanation.

It is fair to state it should not require a Supreme Court judge participating in a commission of investigation to tell us what the Taoiseach knows about the circumstances of the retirement of the former Garda Commissioner. The Taoiseach has not made himself available for interview by anyone to detail what he knows about the sequence of events leading to the former Commissioner's retirement. The Taoiseach was involved in conversations with Mr. Brian Purcell, whom he sent to the former Commissioner’s house. Therefore, the Taoiseach was in the loop. We are told the Minister for Justice and Equality was not in the loop, nor was the Tánaiste. The Taoiseach is the man who knows exactly what happened and the instructions Mr. Purcell was given. Why was something that was occurring for almost 30 years suddenly the catalyst that pushed Mr. Martin Callinan over the edge or allowed the Taoiseach to throw him under the bus, as it were? These are all questions the Taoiseach himself can answer. We do not need Mr. Justice Nial Fennelly to tell us this. The Taoiseach could answer if he put his mind to it. He is choosing not to.

There are a couple of basic questions to be answered. Why did the former Commissioner resign? Why was the Minister for Justice and Equality not informed by his officials about the famous letter from Mr. Callinan which was marked for his attention? Why did the Taoiseach take a number of days to inform the Minister for Justice and Equality about the issue? He did not inform the Tánaiste. The Tánaiste told us just today that he did not hear about the matter until the Tuesday morning. The three were part of a small circle in Dublin on the Sunday, Monday and Tuesday and, therefore, could have addressed this. What is the position of the Attorney General, who was cognisant of all these issues from the previous year, and her officials? They were involved in this on many occasions.

While we have a commission of investigation, it does not take one for these questions to be answered. Despite what the Tánaiste stated in his contribution, namely, that he accepts the versions of events given by his colleagues, there have been no versions given. The Minister for Justice and Equality has not made himself available for interview by any organisation. No media organisation can get within microphone distance of him to ask him some basic questions on the matter. I am reflecting the view of the public in saying it is unacceptable that the public would have to wait until the end of the year to find out why the Garda Commissioner resigned or retired or was sacked prematurely. It is not reasonable to expect the public to wait until then. That is why our amendment to the terms of reference contains the idea that the commission should report on a modular basis.

I believe that is quite constructive. It was discussed at length at the Joint Committee on Justice, Defence and Equality and it has the unanimous support of that committee, which has a majority membership from the Government parties. Despite this, the Government is choosing to ignore what the committee is saying. That is regrettable.

We live in an era when the Government is telling us it is promoting an agenda of political reform and that we should have more work from and more inclusiveness on the Oireachtas committees. We sat twice to consider the terms of reference and we wrote to the Government twice, on the first occasion to ask it to include the issue of the Garda Commissioner and, on the second, to deal with the handling of information and correspondence within the Department. While these have been included, it is not good enough that we have to wait until the end of the year to find out about it.

I also want to refer to the Government's insistence that the only specific case the commission of investigation is going to inquire into is the Sophie Toscan du Plantier case. I want to agree with the concerns expressed by the Tánaiste in and around that case in regard to her and her family. The family find themselves in an awful circumstance when, so many years on, it is still an unsolved case. I am not trying to minimise that case. However, the point I want to make is that this is the only case the Government is highlighting out of the recording of 2,500 tapes. Why are we limiting it to that? If we look at it on the flip side, that case is of such gravity and seriousness, as the Tánaiste has said, that it possibly merits a commission of investigation in its own right. This is something we need to consider. There will be other families who are party to unsolved cases and unsolved crimes, who are still seeking justice and who will be wondering if there is information in these 2,500 tapes which is relevant to their circumstances and to cases in which they have an interest.

That is why I believe the terms of reference are questionable, in particular where they state: "In particular, the commission shall have the discretion to decide to limit its investigation to samples of recordings". I would urge the Government to reconsider that whole point in regard to the sampling of recordings. If there are 2,500 recordings, someone will need to know what is in them and it will not be good enough to have mere sampling. At the very least, the commission under Mr. Justice Fennelly should have to publish a schedule in his report which details an inventory of all the recordings. Obviously, he is not going to make them available to the public, but some competent agency of the State is going to have to be able to reference them when other queries arise in this regard.

I am not sure if the Taoiseach or Tánaiste are going to offer any further contribution in summing up. However, there was no commentary from either of them in regard to whether the sittings will be in public or in private. Will this be left to the entire discretion of the sole member?

I note the Tánaiste's contribution in regard to the establishment of the independent policing authority and he posed a number of open questions. That is a debate in which my party will have no problem taking part. I believe the questions the Tánaiste poses are quite fair. In principle, it is something to which we do not have an objection.

It has been a very disturbing period in terms of the whole area of the administration of justice. Public confidence has been fundamentally undermined by the incompetence the Government has shown in overseeing all the episodes that have emerged. The Taoiseach and Tánaiste will be aware that Garda sergeants and inspectors, who are gathering as we speak for their conference, have said that Garda morale is on the floor. They will also be aware that the Minister for Justice and Equality failed to attend the conference. That is bad enough, but there was no replacement. The Minister of State, Deputy Kathleen Lynch, could have attended, or an alternative Minister could have attended, as was the case in the past. The Government has basically walked away from hearing first-hand the issues of concern to those Garda sergeants and inspectors. Indeed, the Garda Representative Association has confirmed that, for the second year in a row, it is not even going to bother inviting the Minister for Justice and Equality to its event. Considering the decision he has made in regard to the AGSI, who could blame it?

That is the current environment. The platitudes of the Taoiseach and Tánaiste about gardaí, particularly in the speech from the Tánaiste, ring very hollow in terms of how the men and women who are protecting our communities feel right now about how the Government has handled all these affairs.

With regard to the administration of justice, the allegations around the Garda ombudsman's office being bugged were very serious. Unfortunately, however, on the day after it was reported in The Sunday Times, the Taoiseach misquoted the Garda Síochána Act and said that GSOC had a requirement to report to the Minister. Straight away, the tone was set that, in the phrase that was used, the victims were being turned into the villains. The Taoiseach robustly refused media calls for an independent inquiry and it dragged on for another week. Then, finally, he opted not for an inquiry but for a review by Mr. Justice John Cooke, which will report soon. In particular, he did not opt for a commission of investigation into something as serious as this, something so fundamental to our democracy.

When it came to the dossier that was handed over to him by the Fianna Fáil leader, Deputy Micheál Martin, which contained the historical legacy allegations from the Garda whistleblower, Sergeant Maurice McCabe, the allegations were again very serious. I remember well the Taoiseach's remarks at the time, but he again opted for a review, not an inquiry, by Mr. Sean Guerin SC. This review is also ongoing.

When it came to this matter of the tape recordings, however, the Taoiseach went immediately to a commission of investigation. There are suspicions that there was an attempt at distraction away from what were the core issues. In our party's view, the core issue was another emerging scandal, one of the biggest scandals in the history of the State, which is the whole Ian Bailey affair. To take the House through this, very soon investigating officers from the French authorities will come into our State to look to investigate witnesses. That is outrageous interference in our criminal justice system that the Taoiseach is tolerating, even though he knows the basis of that case and the basis for external investigating officers coming into our jurisdiction is flimsy at best. This is based on Garda files that are now fundamentally flawed, which was proven by the report from the Office of the Director of Public Prosecutions in 2001 of which this State has been aware for all those years. That was the basis on which the Supreme Court refused to extradite Ian Bailey. We have all that information, yet the Government is allowing the French authorities to come here and carry on. It is a fiasco.

This involves allegations of Garda behaviour very similar to what emerged during the Morris tribunal, but it is even worse because the State apparatus has stood over this for far too long. Be it the various Ministers with responsibility for the justice portfolio, Attorneys General or the Department of Justice and Equality, they have stood over this whole period. While the incorporation of the Ian Bailey tape recordings from Bandon Garda station into this commission of investigation's terms of reference is welcome, what we need is a dedicated commission of investigation into that whole affair.

There are serious questions for the Minister for Justice and Equality in respect of this affair. He has known since early 2012 following the decision of the Supreme Court and that of his own Department to hand over the 44-page critique from the DPP's office of the initial Garda investigation - a critique that apparently rips that entire investigation to shreds. He has known about this for the past number of years and stood back and let it continue. His Department and the Government are defending a civil case taken by Ian Bailey and his partner, Jules Thomas, as we speak. The Government continues to defend that case and to allow the French authorities to come to our jurisdiction on the flimsiest of evidence provided by our own authorities that has been entirely dismantled. Of course, the 44-page critique by the DPP that was given to Ian Bailey's legal team and the Supreme Court and which was the basis upon which the court refused to extradite Mr. Bailey only came into the hands of his legal team because the previous DPP, Eamonn Barnes, realised that there was the basis for a serious miscarriage of justice. He knew from his time in 2001 about this ridiculous and appallingly flawed investigation and all the emerging issues around witnesses being coaxed and cajoled into giving evidence. That was all known about at the highest levels of the administration of justice in this State and it continues.

The Taoiseach must intervene in this case. He needs to bring in the Minister and ask him what he did through 2012. On three occasions in 2012, Ian Bailey's legal team wrote to the Minister about the failure of the Garda to co-operate with the investigation by GSOC. The Minister refused to intervene and to ensure that the documentation that GSOC required was given to it, yet the Minister intervened the following year when GSOC made public its absolute bewilderment and frustration about the failure of the Garda to co-operate in the Kieran Boylan affair so he could have intervened in the Ian Bailey case over those three letters sent to him but he refused to do so. He refused to intervene to sort out the issue of the Garda co-operating fully with GSOC and refused to deal with the implications of the Supreme Court case. He said he would consult the Attorney General and nothing happened. That is the real scandal here.

It then continued into November 2013. The reality is that the Attorney General was briefed by the Garda Commissioner that the Garda was very concerned about the tapes that emerged due to the discovery order made against it arising from an application from Ian Bailey's legal team. There were major issues. It took four whole months for the Attorney General to meet the Taoiseach on that fateful Sunday and to brief him about it. So serious was this that the Taoiseach decided immediately to opt for a commission of investigation despite the fact that he opted for reviews in those other serious matters about which I learned earlier. That is the major question mark around the Minister and the way he handled one of the largest emerging scandals in the history of the State. I have no doubt that the full story of this scandal will be told over the next few years and that there will be major question marks for everybody involved.

The Oireachtas Committee on Justice, Defence and Equality debated this issue and welcomed the fact that a commission of investigation would be set up because it would have powers to compel witnesses and documentation and to make findings of fact - powers which are not possessed by the committee. We wanted to see the terms of reference altered in respect of the circumstances that led to the resignation, retirement, sacking or whatever one calls it of the Garda Commissioner; the handling of documentation by the Department of Justice and Equality; the length of time from November 2013 when the Garda Commissioner and the Garda set up a panel to look at this; the knowledge the Attorney General had; how it took that length of time; the circumstances around the decision; and the fateful visit by the Secretary General of the Department, Brian Purcell, who was sent out by the Taoiseach. Since then, sources close to the Commissioner have been briefing one of the leading journalists in this State and making it clear that the Garda Commissioner wanted to withdraw his comments made before the Committee of Public Accounts but that Department officials apparently advised him not to. Another issue is the visit and what was said during it and the reassurance the Commissioner may have wanted on the Tuesday morning. When he did not get it, he knew he had to go. It is very clear to anybody looking at this situation that he was sacked but there are major question marks over what led to that. Sources close to the Attorney General briefed the former editor of The Irish Times, Geraldine Kennedy. The paper contained front-page articles about the Attorney General's perspective for two days in a row. These briefings are being given to senior journalists from sources close to those involved but the people are not getting the full truth.

This is why we are very disappointed with the decision of the Government not to amend the initial draft of the terms of reference so as to front-load the political issues. These are the issues around the correspondence with the Department, the sequence of events from November 2013 through to the Taoiseach's meeting with the Attorney General and the retirement or resignation of the Garda Commissioner. Those issues should have been front-loaded and they should have been dealt with as much as possible in public session because the commission of investigation can make findings of fact and compel witnesses and documentation - everything our committee, with the best will in the world, cannot do. We are saying that the Government should have front-loaded those issues, including the Taoiseach's evidence, which can be dealt with very quickly. That should have been done in public and it could have been done within an eight-week period. This is the time the Government has given Mr. Justice Cooke and Mr. Sean Guerin SC to complete their reviews so it is a good template. Eight weeks is plenty of time but the Government has chosen to kick it to touch which fundamentally undermines the overall terms of reference. The Government knows very well that it is unlikely that this work will be completed by the end of this year. It will probably run into next year and possibly the year after that so it could take two years before we hear about what happened and how the Garda Commissioner came to issue his letter of retirement to the Government. That is the big issue at this stage.

There are so many questions. There are major questions for the Minister and questions about why the Government immediately opted for this commission of investigation. A cursory examination of the Dáil records will show that in 1994, the then Minister for Justice, Máire Geoghegan-Quinn, was dealing with issues around recordings of conversations in Garda stations. She asked the then Garda Commissioner to report to her. Allegations around these practices also emerged in the Morris tribunal. While any suggestion that the privileged conversation between a person who has been arrested or detained and their solicitors is an immensely serious matter, the question is whether there was an attempt to take away from the real core issue. Our party humbly submits that the Ian Bailey affair, the way it has been handled and its implications for this Government constitute the big scandal. This is the one which cannot be denied or walked away from. I hope the Government deals with that and the issue of French investigating officers going back into west Cork to interview people, undermining our criminal justice system and showing disrespect for our processes in this State based on flimsy evidence. Will the Government deal with this issue and intervene? Will it continue to defend the indefensible in terms of the civil case taken by Ian Bailey and his partner, Jules Thomas? Will it continue to stand over all of that? Even at this late stage, will the Government consider the entirely reasonable proposition from the all-party Committee on Justice, Defence and Equality that the resignation of the Garda Commissioner, the handling of correspondence and all the meetings that took place be front-loaded?

I urge the Government to front-load the issues of the resignation of the Garda Commissioner, the handling of correspondence and the various meetings that happened. These could be dealt with in the eight week period. Let us get it over with, deal with it and get the full facts out before the public. We can then move on to the issue of the tapes which will undoubtedly take a considerable period of time.

The last time the Minister for Justice and Equality was before the House to answer Minister's questions at the end of February I asked him to conduct an independent inquiry into the Garda treatment of Ian Bailey. His response was that it was the subject of legal proceedings and that it would be inappropriate for him to comment. He did not answer the question. Now, six weeks later we are being told that a commission of investigation is being set up. The terms of reference that the Taoiseach referred to earlier include an examination of whether there was any evidence of unlawful Garda activity towards Ian Bailey, but evidence of unlawful Garda activity towards Ian Bailey has been known by this State since 2001 and the DPP's report. Information has been available on fitting up and on the supply and distribution of drugs by members of An Garda Síochána in that case. In 2006, Marie Farrell went to everybody and told how gardaí had done favours for her in return for giving evidence against Ian Bailey. It is correct, as Deputy Mac Lochlainn said, that there are rumours that French prosecutors, with the permission of the Minister, are back on these shores to examine what we now know - and have known for some time - was a corrupt and false Garda investigation into the horrific murder of a French national. There are members of the French legal system in the Visitors Gallery today because this story has become international.

That case was horrendous but it was not the only case dealt with by gardaí in west Cork. If the Government was serious about getting to the bottom of how the Garda operates in this State, then the entire operation of the west Cork force should be brought under the remit of the commission of investigation. So too should other stations around the country that crop up more often than others - districts like Tullamore, Cavan and Limerick, for example.

This inquiry must be held in the open and it must be fully resourced. The O'Mahony internal inquiry had around 30 people working on it full time. There needs to be a full complement of senior counsel put on this case. We need to know what will be examined - it cannot be left to the judge. I appreciate the fact that the terms of reference leave open the question of the prison recordings but that is not good enough. This is a very serious matter. Prisoners' telephone calls with their solicitors were taped. I do not agree with what Michael Donnellan has said in this regard. I believe that information was known by the State. I have evidence which suggests that last year, gardaí from Tullamore sought access to recordings of calls between a solicitor and prisoner in the Midlands Prison. I believe this was well known. These things are not in the past.

I think the Taoiseach and his friend, the Tánaiste, were trying to say that a line has been drawn, that they are now in favour of new appointments and a new, independent police authority but how could anybody take that seriously, given that the Taoiseach vilified that idea last year and said it was not necessary? The Taoiseach is presiding over a dysfunctional police force at the moment and he needs to do a lot more than this which is, in some ways, a side-show. If the Taoiseach was serious he would be establishing a thorough commission of investigation into far more than the matters at hand and we would be deciding the terms here.

The Taoiseach said today that the commission shall exercise discretion regarding the scope and intensity of the investigations it considers necessary and appropriate. He also said that the commission shall have the discretion to decide to limit its investigation. Does he actually want the truth or the minimum? Mr. Justice Fennelly has not been asked outright to examine the issue of the recordings that took place in prisons. Perhaps the Taoiseach should ask Brian Purcell if he knows a bit about it. There is no point in saying that the Minister will make a decision on it after the Inspector of Prisons looks at it and there is another internal review first. The Taoiseach should direct that it goes ahead now.

When we raised the issue of racial profiling by the Garda the Minister completely denied in this House for months that it was prevalent in the Garda Síochána. However, now that the report of the Ombudsman for Children is coming out, he changed his tune a little in Naas last week. However, there is still no investigation into the allegations that 40 Traveller children were put on the PULSE system. Why is this not being included in the commission of investigation? We were told last October, when we again raised the issue of racial profiling, that we were a disgrace by the Minister for Justice and Equality. The Sean Guerin investigation is yet another paper review. It means nothing. It should also be included in the commission of investigation. Let us find out what is in the dossier that Maurice McCabe put forward. Let us see what is really in it and investigate anything that needs to be investigated. Maybe some of it does not need to be investigated but I suspect some of it does. We are not going to know the truth until we have an independent public inquiry into it.

We will get nothing from the investigation by Mr. Justice Cooke either. We need a proper, public and independent inquiry into the GSOC bugging allegations. The GSOC bugging issue is, for me, the biggest scandal of them all. The truth has not been told. What GSOC found out last summer was enough for the Garda Síochána to decide to bug it. The dogs in the street believe that GSOC was bugged by An Garda Síochána and we are not going to know the truth until we have an independent public inquiry. The Government is not going to regain the trust and confidence of the people until we have such an inquiry into this issue. There is more than the Garda bugging GSOC. Gardaí have come to us and made serious allegations about drugs and senior gardaí and about gardaí involved in drugs. It is all part of a terrible mess.

Too many lies have been told. I do not know for how much longer the Taoiseach is going to back the Minister for Justice and Equality but he cannot back him forever. The truth is going to catch up with him. His credibility is gone and the longer the Taoiseach backs the Minister, the more the credibility of his Government will diminish. The Taoiseach will lose the support of his own people if he does not start calling a spade a spade. Let us get to the truth.

I regard this commission as an effort to smother a political problem in the midst of a larger problem. I acknowledge that there is a need to address the extraordinary incidence of taping in Garda stations, although there is a puzzle here which I have never been able to solve. Nobody seems to have known about this until a few weeks ago. The Taoiseach, the Minister for Justice and Equality and everyone else in this House will know at this stage that the contract for that particular operation was openly and publicly advertised on e-tenders in 2007. A renewal of that contract was openly and publicly sought - I am not sure if it was every three years or every year; I cannot remember. There was also an annual maintenance contract. Yet, it comes as a total shock to everybody in the Government, the Department of Justice and Equality and, apparently, most gardaí that this was happening. That does not make sense.

The real problem here is that while this may need to be investigated and the operation of it certainly needs to be investigated, even if people are pretending they did not know anything about it, what we really need is an answer to the immediate question which is so threatening to the administration of justice in this country. It is shocking that we are not going to get an answer to the question as to what happened in the Department of Justice and Equality in those ten or 15 days when a letter languished there, unseen and unknown by anybody, apparently, and apparently not of any great importance. That is the question that needs to be answered initially. The Taoiseach may not acknowledge it but everybody in this House knows it.

The confidence of the people in what is happening in the Department of Justice and Equality is at nought at the moment.

It is a secretive Department which obfuscates and is unwilling to impart any knowledge to members of the public or the media. As long as that continues, public confidence, not only in the Garda and the Government but also in the administration of justice, will continue to diminish. It would have been right and proper for an investigation to have taken place immediately to find out what happened in those missing days. While they may be wrong, no one believes the version that we are being given at the moment that somehow no one of importance knew anything about it. We are being given cock-and-bull fairy tale stories about what happened to that letter. Some of them concerned bereavements, for which we all have sympathy, but there were others about people being too busy because they were attending book launches and press conferences. I have heard nonsense in this House, but that is absolutely misleading rubbish.

While the issue of the secret taping of conversations in Garda stations is extremely serious and needs a thorough investigation, one can only be wholly cynical about how the Government rushed to set up this particular commission of inquiry. It is quite clear that it was, and is, a means of avoiding immediate explanations by the Taoiseach and the rest of the Government of what pressure was brought to bear on the former Garda Commissioner to resign his position, to scapegoat him for the incredible mess that he, the Minister for Justice and Equality, the Taoiseach and the rest of the Government made of the serious issues that were continually brought to their attention by Garda whistleblowers concerning malpractice in the force. They responded incredibly when the Garda Síochána Ombudsman Commission reported its suspicions of having been placed under surveillance, which everyone believed was surveillance by the Garda Síochána. That would have to have been cleared at the most senior levels.

There are many critical issues concerning Garda investigations and actions going back over many decades that need to be examined and re-opened where they have been closed. Afri - Action from Ireland, for example, has compiled a comprehensive dossier on the occupation of a community in County Mayo by the Garda Síochána on the orders of the Government to ensure Shell Oil was given ownership of a crucial natural gas resource. As the Taoiseach turned his back on his own people, we had a community subjected to continual repression, violence by members of the Garda Síochána, and the most disgraceful pressure on decent people. That needs to be investigated.

Ms Cynthia Owen has requested many Deputies to keep raising her quest for justice. Her case involved horrific child abuse, the murder of her child and the alleged involvement of gardaí in that. Those matters need to be re-opened and investigated.

The murder of the Reverend Niall Molloy has been raised consistently in recent times, including evidence that there was a total stitch-up of that investigation. Those and other issues need to be examined. We have to find a proper structure for examining them in public, unlike the commission of investigation legislation which is largely in private. Those who have been affected by these malpractices within the Garda Síochána must also be represented.

I thank the Leas-Cheann Comhairle for the opportunity to speak on this motion on the proposed terms of reference for the commission of investigation. I am also a member of the Committee on Justice, Defence and Equality and I took a completely different view from my colleagues on recent events involving the Garda, the resignation of the Garda Commissioner, the Minister for Justice and Equality, and the whole issue of the letter and the Secretary General. There was absolutely no reason the Secretary General and the former Garda Commissioner could not have attended the committee to answer a few simple questions. It could have been done and dusted in four hours, yet all we got was fudge and more kicking the can down the road. I am amazed people do not find this situation to be a major constitutional crisis. We all need to understand that the public, the Garda, the Judiciary and, according to the Taoiseach, lawyers have strong feelings of ill will towards the Minister for Justice and Equality. This, to me, is a major constitutional crisis.

I support elements of the committee's submission to the Taoiseach concerning the terms of reference. I support the issue dealing with the consequences resulting from taping these conversations, the sequence of events leading up to the retirement of the former Garda Commissioner, the handling of information by the Department of Justice and Equality, and the administrative procedures in place within the Department governing the transfer of knowledge from officials to the Minister.

At the time, the Committee on Justice, Defence and Equality said it reserved the right to conduct its own examination in these and related matters as it sees fit. The public want answers to these simple questions. Why did the former Garda Commissioner resign? Why was the Minister, Deputy Shatter, not informed by his officials of the letter from the Garda Commissioner? Why was the Minister not informed by the Taoiseach? Why did the Attorney General not tell the Taoiseach or other Ministers about the Garda bugging scandal? Why did the Taoiseach not inform the Tánaiste as well? These are crucial questions.

The other issue that has been neglected in this debate is the damage that is being done to the Garda Síochána's service in this State. Honest gardaí on the beat want these matters resolved. They are hard-working, good, honest public servants, but public trust in them has been damaged. People want to know the answers to these questions.

The Taoiseach should take up the proposal by the Committee on Justice, Defence and Equality to accept the two modules dealing with the Garda Commissioner's resignation and the letter. Those matters could be done and dusted in a matter of weeks. The Taoiseach should listen to the voices of Members of the Oireachtas who reflect public opinion.

Amendment put:
The Dáil divided: Tá, 36; Níl, 71.

  • Adams, Gerry.
  • Browne, John.
  • Calleary, Dara.
  • Collins, Joan.
  • Collins, Niall.
  • Colreavy, Michael.
  • Crowe, Seán.
  • Daly, Clare.
  • Doherty, Pearse.
  • Donnelly, Stephen S.
  • Fleming, Sean.
  • Halligan, John.
  • Healy, Seamus.
  • Healy-Rae, Michael.
  • Higgins, Joe.
  • Kelleher, Billy.
  • Mac Lochlainn, Pádraig.
  • McGrath, Finian.
  • McGrath, Mattie.
  • McGrath, Michael.
  • Martin, Micheál.
  • Mathews, Peter.
  • Moynihan, Michael.
  • Murphy, Catherine.
  • Ó Caoláin, Caoimhghín.
  • Ó Cuív, Éamon.
  • Ó Fearghaíl, Seán.
  • Ó Snodaigh, Aengus.
  • O'Brien, Jonathan.
  • O'Sullivan, Maureen.
  • Pringle, Thomas.
  • Ross, Shane.
  • Smith, Brendan.
  • Stanley, Brian.
  • Tóibín, Peadar.
  • Wallace, Mick.


  • Bannon, James.
  • Barry, Tom.
  • Burton, Joan.
  • Butler, Ray.
  • Buttimer, Jerry.
  • Byrne, Eric.
  • Cannon, Ciarán.
  • Carey, Joe.
  • Coffey, Paudie.
  • Conaghan, Michael.
  • Conlan, Seán.
  • Connaughton, Paul J.
  • Corcoran Kennedy, Marcella.
  • Coveney, Simon.
  • Daly, Jim.
  • Deasy, John.
  • Deering, Pat.
  • Doherty, Regina.
  • Dowds, Robert.
  • Doyle, Andrew.
  • Durkan, Bernard J.
  • English, Damien.
  • Farrell, Alan.
  • Feighan, Frank.
  • Ferris, Anne.
  • Fitzgerald, Frances.
  • Fitzpatrick, Peter.
  • Flanagan, Charles.
  • Gilmore, Eamon.
  • Griffin, Brendan.
  • Hannigan, Dominic.
  • Harrington, Noel.
  • Heydon, Martin.
  • Howlin, Brendan.
  • Humphreys, Kevin.
  • Kehoe, Paul.
  • Kenny, Enda.
  • Kyne, Seán.
  • Lawlor, Anthony.
  • Lynch, Ciarán.
  • Lynch, Kathleen.
  • McCarthy, Michael.
  • McGinley, Dinny.
  • McHugh, Joe.
  • McLoughlin, Tony.
  • McNamara, Michael.
  • Maloney, Eamonn.
  • Mitchell O'Connor, Mary.
  • Mulherin, Michelle.
  • Murphy, Dara.
  • Murphy, Eoghan.
  • Nash, Gerald.
  • Neville, Dan.
  • Noonan, Michael.
  • O'Donovan, Patrick.
  • O'Mahony, John.
  • O'Sullivan, Jan.
  • Perry, John.
  • Phelan, Ann.
  • Phelan, John Paul.
  • Rabbitte, Pat.
  • Reilly, James.
  • Ring, Michael.
  • Ryan, Brendan.
  • Spring, Arthur.
  • Stagg, Emmet.
  • Stanton, David.
  • Tuffy, Joanna.
  • Varadkar, Leo.
  • Wall, Jack.
  • White, Alex.
Tellers: Tá, Deputies Niall Collins and Pádraig Mac Lochlainn; Níl, Deputies Emmet Stagg and Paul Kehoe.
Amendment declared lost.
Question put and declared carried.