Leaders' Questions

We have had the publication of the O'Higgins report into deficiencies, malpractice and a series of investigations at Bailieboro Garda station, the areas surrounding the station and its hinterland. We had much selective leaking and managed interpretations of the report in advance, which were disingenuous and led people down the wrong tracks. It needs to be put on the record that the O'Higgins report essentially vindicates, in the first instance, the central recommendation of the Guerin report, which was to establish a commission of investigation into the series of allegations at various levels of An Garda Síochána made by Sergeant Maurice McCabe on a number of occasions. They were contained in a dossier which he handed to me and which I, in turn, handed to the Taoiseach, Deputy Enda Kenny. On foot of that dossier he initiated the Guerin report, which is very clear about the veracity and credibility of Sergeant McCabe and the allegations he made. It recommended that a commission of investigation be established. It covers a whole series of investigations of incidents where serious crimes were committed, where victims were not dealt with properly and where they were not served properly by the institutions of the State, particularly An Garda Síochána, on those occasions. The most noteworthy was the case of Jerry McGrath who went on to murder Sylvia Roche-Kelly, following earlier criminal acts including the abduction of a child in Tipperary while he was out on bail and the assault on others.

As we know, this has been a long saga but throughout all of it there has been a campaign to undermine Sergeant McCabe. There seemed to be a fundamental reluctance to accept the veracity and credibility of what he was about, to such an extent that it became necessary to establish a commission of investigation.

I ask people to read chapter 11 of the O'Higgins report regarding Fr. Michael Molloy, the missing computer and, incredibly, ending up in Sergeant McCabe being brought before disciplinary hearings of which he was later exonerated-----

We have strict time limits. I ask the Deputy please to adhere to them.

I am going to put the question. Sergeant McCabe was later exonerated. That has to be said. That is what makes the revelations in last week's Irish Examiner all the more disturbing. They allege that senior counsel, on the instruction of An Garda Síochána, put forward the view that Sergeant McCabe was acting with malice. The senior counsel were questioning his motivation and character right the way through, notwithstanding what the Guerin report or the McGinn and Byrne investigation said about the absence of malice. It is a very serious issue because it cuts to the heart of how whistleblowers are treated and the degree to which there is acceptance within the highest level of An Garda Síochána about the credibility of the individual concerned making the allegations, his reputation and the veracity of the claims he has made. That is why it is so serious. That is why it demands a comprehensive and transparent addressing of the issues.

Does the Deputy have a question?

Has the Tánaiste spoken to the Garda Commissioner in this regard? Will she speak to the Garda Commissoner? Will she find a mechanism by which this issue can be comprehensively and transparently dealt with?

I want to acknowledge the role that Deputy Martin himself played in highlighting the issues in relation to the victims whose cases were investigated in the O'Higgins report. I want to reiterate the point I made when publishing the report that we should not lose sight of the central fact that at the heart of this report are the victims who were let down. The Deputy made that point himself. I have already paid tribute to Mary Lynch, who spoke last night on "Claire Byrne Live" and illustrated very vividly what victims who were the subject of these investigations went through. I phoned her this morning and will be meeting her next week, now that I am in a position to do so.

Like Deputy Martin, I believe our focus now should be on taking all steps necessary to ensure that this does not happen again. I have said already in the House that there are constraints on what I can say under the Commission of Investigations Act 2004, which form the legal basis put in place by the Oireachtas, about the claims the Deputy has mentioned that have appeared in the media. In his report, Justice O'Higgins referred to the confidentiality of the proceedings, saying that he took all necessary steps to ensure confidentiality in the way he approached the commission. All 97 witnesses who were before the commission have rights and I, and others, have a duty to respect those rights. I also have a duty to respect the law. That duty is not diminished by the fact that some media reports have appeared, as the Deputy has said, purporting to set out a small part of what may or may not have happened at the commission - they are private proceedings - notwithstanding any legal prohibitions in that regard.

I make the general point that partial disclosure of what happens in private at commissions of investigation is inherently unfair to those who participate in such commissions and properly feel bound by the laws which apply to them. It was a matter for Justice O'Higgins to reach conclusions based on the hearings and to report as he saw fit, which he has done. He has made the points in relation to Sergeant McCabe and the service and approach that Sergeant McCabe took when he took the actions that he did. The judge did not make findings or comment along the lines of some public comment lately. That is to be noted. We must remember that Justice O'Higgins is the person who heard all of the evidence and is uniquely in a position to lay out the conclusions, which he has done. The history of the unhappy events dealt with in the report shows the dangers of people proceeding on the basis of incomplete information. We have very comprehensive information now from the report.

The Tánaiste ought to conclude.

If I may, I would like to make one or two further points. Justice O'Higgins acknowledged the co-operation he received from all persons. They were not adversarial hearings. They were inquisitorial. He made the point that every legal team that responded did so in that way. They were generally followed. He did not make any adverse findings as to any aberrations by counsel when they attended on behalf of any particular party.

I wish to note the Garda Commissioner's comments last night on those issues which have been in the public domain.

She repeated that she accepted fully the commission's findings and, of course, that includes accepting fully what the commission had to say about Sergeant Maurice McCabe.

Is the Minister satisfied from a legal perspective that the section of the Act concerned covers legal instructions and submissions because I have been advised that it does not cover legal instruction and submissions by senior counsel? My understanding is that it was not inquisitorial in respect of Sergeant McCabe but was, in fact, extremely adversarial and that almost every single thing was laid at his doorstep. That is why the issue needs comprehensive treatment and to be addressed in a transparent manner. There is a sense, rightly or wrongly, that the person making the allegations felt he was the person on trial throughout the process. While I accept that the report itself is very meticulous, in relation to chapter 11 and, indeed, to an earlier issue pertaining to a GSOC inquiry relating to the Mary Lynch case, Sergeant McCabe was again wrongly accused before being vindicated because, luckily, he had a tape recording. He was wronged completely in terms of Fr. Molloy and the missing computer. Clearly, he had a recording of the conversation with these two officers who apparently alleged in advance that he was motivated by malice. One wonders where he would be now in terms of the court of public opinion if he had not taken those protective measures.

There is an issue for all of us in the House when one looks at what transpired over the last three weeks when these issues were articulated via selective leaking, spinning and interpretation. Given the selective leaking, it is very easy to see how a person in Sergeant McCabe's position would have been extremely vulnerable if he had not taken the protective measures he did to protect his reputation and credibility. To be fair to Seán Guerin, who has been much vilified in recent times as well, he went to the trouble of getting statements from all of the people in charge of Bailieborough from 2003 onwards and they were exemplary in terms of their commentary on Sergeant McCabe's character and conduct. That is an important point. One wonders if there was an attempt to undermine the Guerin report in its entirety. I do not know nor do I have all the answers to it but it needs to be comprehensively addressed.

Obviously, we will have a debate in the House on the commission of investigation. It is important that we look at all the details. What Deputy Martin has said in relation to the commission of inquiry is not what Mr. Justice O'Higgins said about the hearings and the way they were conducted. He said that they were inquisitorial and not adversarial and that is from the judge himself. He went on to say that this non-adversarial method was generally followed by all legal teams. There were a few isolated aberrations from this approach but he did not attribute what he had referred to as "aberrations" to counsel for any particular party. That is worth noting. He is the person who heard all of the evidence.

We need to look at the report. I have met the Commissioner and she accepts fully the recommendations and the report and has made it clear what her attitude to Sergeant Maurice McCabe is at this point and was in the past. She has made that very clear in the statement. We have to accept that statement from the Commissioner.

In relation to the other points Deputy Martin made on legal privilege, suffice it to say we would be going down a very dangerous route for future commissions if we were to insist that all legal professional privilege between clients and lawyers should be in the public domain; not that we could. It is important that we keep confidence in the commission structure. Keeping that confidentiality is part of that.

Last Thursday, after almost two weeks of selective leaking, the O'Higgins report was finally published. The media management of the report is entirely unacceptable and if I may say so, so are the Minister's answers here today. Mr. Justice O'Higgins found that the internal Garda investigations of complaints in the Cavan-Monaghan division were deficient. He does not say who is to be held responsible for such malpractice but he says there was a corporate closing of Garda ranks which led to the allegations made by Sergeant McCabe being ignored. The Minister knows that the crimes involved were very serious. They include false imprisonment, assault, murder and sexual assault. It is the victims of these crimes, as the Minister has acknowledged, who have been let down most. The report is now mired in controversy because it has emerged that two senior Garda officers apparently claimed that Sergeant McCabe admitted to them that he was motivated by malice. The claim was also apparently made by a senior counsel acting for the Garda Commissioner. It appears that when it emerged that Sergeant McCabe held a recording of the meeting and his record disproved the allegation that he acted maliciously, the claim was not proceeded with. This episode is not mentioned anywhere in the O'Higgins report. The question for the Tánaiste is straightforward and she can answer it without divulging, notwithstanding that she is quite entitled to do so, the information on these issues. Has she spoken to the Garda Commissioner on these issues? Has she asked the Garda Commissioner if she instructed her legal team that Sergeant McCabe admitted he acted with malice? Has she asked if two officers claimed Sergeant McCabe admitted this to them? Has she, as Minister, asked for an explanation for this and will she give that explanation to the Dáil?

I want it to be clear that in publishing the report, I followed through on the legal steps it was necessary to take once I had received it. First, the report had to be seen by the Attorney General and it then had to be sent to a number of bodies to ensure that no criminal prosecutions would be interfered with or compromised by its publication. The report had to go to GSOC, the Director of Public Prosecutions and An Garda Síochána. I then took it to Cabinet and published it immediately afterwards. Clearly, various people had copies of the report and I agree with Deputies Adams and Martin that it is extremely unfortunate that aspects and sections of it were leaked during that period. Of course, I had no responsibility for that but different people had different sections of the report and some chose to act illegally in relation to the information they had. It is illegal to publish the information in relation to a commission of inquiry such as we have seen.

To answer the Deputy's questions, neither I nor my Department had any involvement in the approach taken by the Garda at the commission of investigation. There is no question of that. The duties of confidentiality on the Commissioner imposed by the commission of investigation are not overridden by any duty of the Commissioner to account to me in relation to the commission. It would have been completely wrong to try to influence the approach of the Garda to the commission of investigation. In relation to the current situation, I have ongoing meetings with the Garda Commissioner and, in respect of my recent discussions with her, what is in her statement yesterday outlines her approach to the findings of the commission of investigation, which she accepts fully. She has outlined very clearly her response to the recent media reports that we have seen and has outlined that she recognises the value of what Sergeant Maurice McCabe did, accepts the findings of the commission in relation to him and accepts that the recommendations must be followed through.

I asked the Tánaiste a series of very direct questions, which she did not answer. We are supposed to be in a new political dispensation. The questions were very straightforward.

Has the Tánaiste spoken to the Commissioner about the allegation that the latter instructed her legal team to the effect that Maurice McCabe had acted maliciously? I asked the Tánaiste that question and I am going to ask her again. I also asked her whether two officers had made the same allegation. She has not answered these questions at all.

I happen to believe that the Tánaiste is a good Minister, but I will remind her of what happened to Alan Shatter. He was appointed as Minister for Justice and Equality and she was appointed following his resignation. He was embroiled in a series of scandals when the two Garda whistleblowers, John Wilson and Maurice McCabe, raised concerns regarding practices within the upper echelons of An Garda Síochána. It is now a matter of fact that they were smeared and bullied. Teachtaí anseo were also smeared and measured, rational propositions from Sinn Féin and others were ridiculed by the Government, including An Taoiseach. Then, one day, the Attorney General told the Taoiseach about the taping of telephone calls into and out of Garda stations. There was no way that the Taoiseach would fob this issue off any longer. After telling us for months that there was nothing to see and we should move on, he acted in an entirely unorthodox and unacceptable way. I said this at the time.

The Deputy needs to conclude.

I will. As I stated at the time, the Taoiseach was solely responsible for the events that followed and for the unprecedented series of resignations. Let us remember that the most important people are the victims of crimes that were not properly investigated.

I put my questions to the Tánaiste again. Will she ask the Taoiseach to make a full and comprehensive statement to the Dáil on the serious matters that he needs to address or will she wait until he sends the Secretary General of her Department to talk to the Garda Commissioner?

Obviously, the Taoiseach will make a statement when we have the debate in the House. That debate is being arranged by the Whips.

In this era of new politics, it is important that I respect the law and the duty that I have to it. That is what I have been doing in my responses to the Deputy on this question. The commission and Mr. Justice O'Higgins were in the best position to hear all of the facts and to reach conclusions on the very serious incidents that were investigated by the commission. In that regard, the commission's report is the best description that we could possibly have got of the various incidents.

I took the decision when I got the Guerin report to follow its recommendations in full, namely, to set up a commission of investigation with statutory powers. The 97 witnesses were heard and we have the report. We can do the best service to the victims whose cases were investigated there and provide the best response that they should be getting by dealing with the recommendations in the report. That is what the House should now be doing.

Answer the question.

The Tánaiste has been asked a question. Will she answer it?

One speaker, please. Let the Deputy's leader speak.

A Deputy

That is not Deputy Mick Barry's leader.

Well then, tóg go bog é.

A Deputy

The leader of the left.

I congratulate the new Tánaiste and Minister for Justice and Equality and wish her well in her job.

It has been almost one year since the iconic Clerys store on our national main street was unceremoniously shut down and its hard working and loyal staff and many small businesses that operated therein were thrown out onto the streets. In one of the worst examples of corporate greed in our recent history, approximately 500 staff and dozens of small businesses were left with nothing and had to rely entirely on the State's insolvency schemes at significant cost to the State, PRSI contributors and taxpayers.

I support the Clerys workers in their fight for justice and their demand that the type of corporate behaviour and corporate greed that they fell victim to should not be visited on any other Irish worker or small business. Does the Government agree with Mr. Kevin Duffy and Ms Nessa Cahill, the authors of a recent report, on the need to change employment law to protect workers better who are caught in insolvencies like the one at Clerys, which left people out on the street with all of their entitlements gone? Will the Government support the Clerys workers in their search for justice and fair treatment? Will the simple and moderate changes in employment law that were recommended in the Duffy-Cahill report be put into law and implemented by the Government and when will that happen?

As the Deputy is aware, a report was published two weeks ago relating to the issues that she has raised. The whole country saw what happened to the Clerys workers and was concerned about it. That report has identified changes that could be made to the law. It will be considered under the Government's legislative programme. The Minister for Jobs, Enterprise and Innovation is assessing the report to determine whether legislative change is necessary to deal with the issues that the Deputy outlined.

Last week after the Labour Party left office, IBEC strongly refuted the need to change employment law. Does the Government agree with the position taken by the workers or IBEC? This is a simple question. On whose side does the Government stand? After five years of reform to employment and collective bargaining laws inspired by the Labour Party in office, I am horrified to see that the further enhancement of employment legislation in respect of workers barely gets a mention in the programme for Government. If there is a chapter or two or three pages that I have missed, could someone point them out to me? They are not there. As a society, we have problems around-----

The Labour Party was in government for the past five years.

We always used collective bargaining.

One speaker, please.

Is Deputy Bríd Smith blind?

Tax reliefs and Ministers' pensions.

-----protecting people in arranged insolvencies, such as that involving Clerys, that appear to be within the framework of common law but manage to turn workers and businesses out onto the street and offer them no protection. The programme for Government is silent on this important issue.

It is a bit like what Labour is doing to Deputy Kelly.

Who did nothing either.

Could the Tánaiste tell us about it, please?


This issue is currently being examined following the publication of the report that Deputy Burton cited. Clearly, if legislation is required to give the kinds of protection required by situations such as that at Clerys, it will be considered by the Government and will be-----

It is not in the programme for Government.

That does not exclude it from being considered. The report will be examined. If legislation is required, it can be introduced.