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Dáil Éireann debate -
Thursday, 9 Feb 2017

Vol. 938 No. 2

Commission of Investigation relating to disclosures by members of An Garda Síochána: Statements

I want, first of all, to thank Members of this House for agreeing to statements being taken on this important matter in the House today. As the House will be aware - Deputy Howlin has just asked about it - I have laid whatever material I can before the House. I also have put before the House the full recommendations of Mr. Justice O'Neill, as well as the conclusions and terms of reference. However, before moving to seek approval for the relevant motion, I believe it is sensible that we discuss these matters here. That is what I would like to see happening this afternoon. I am already persuaded from discussion which I have had and commentary I have listened to that there may be some improvements that can be made to put beyond doubt that certain matters will come within the remit of the proposed commission. I intend to reflect on what is said today and make any amendments to the proposed draft order in the light of those discussions. There is a particular procedure that Deputies will be aware of when an order must be made before the House with regard to a commission of investigation. There is Cabinet approval and so on.

I must emphasise, as Mr. Justice O'Neill indicated, that it is imperative that certain allegations be examined. We should stick as closely as possible to the terms of reference he proposed, not least because otherwise, we could delay finding out the truth about these important matters. Mr. Justice O'Neill does not know if the allegations he says should be inquired into are true; I do not know if they are true and nor does any Member of this House. We have to remember that the truth or otherwise of allegations is not determined by their seriousness or their frequency but by the facts. Establishing those facts, without fear or favour, is what I and the Government are determined should happen. I am very grateful that Mr. Justice Charleton of the Supreme Court has agreed to act as the commission with all its powers.

It is of the utmost importance that allegations of wrongdoing by members of An Garda Síochána are fully addressed and there is no doubt that in the past this did not happen as it should have. It is very important that in addressing one injustice we do not create others. Just as failing to address allegations of wrongdoing or victimising those who have the courage to come forward and identify wrongdoing is unacceptable, so too is damaging, without evidence or fairness, the good names of people. I remind the House that we have seen in the recent past commissions of investigation establishing that people who have made allegations have been found to be correct in the face of denials and obstruction, while on the other hand, persons investigated had behaved completely properly. They had to live for a long time under the shadow of allegations that were found not to be well based and, in some cases, their careers were ruined with great personal cost. That is the reality behind charges that can be made in this House.

We have a solemn duty to act with scrupulous fairness and in the public interest when allegations of wrongdoing are made. That is why when I received disclosures from two members of An Garda Síochána last October I asked Mr. Justice O'Neill to review the allegations and recommend what further action may be taken. I stated this in the House and his full report will of course be made available to the commission of investigation. I have set out in the statement of reasons before the House the conclusions and recommendations contained in his report and Mr. Justice O'Neill's recommended terms of reference. The priority, as I stated, must be to give full effect to his recommendations. I recognise, of course, that other Members of this House may have views about what should be included in those terms of reference and I will listen to those views this afternoon.

As I did earlier, I want to address directly suggestions that the Garda Commissioner should stand aside. It is easy to come into this House to make allegations - even where they are described as not being allegations - against someone who is not here to defend himself or herself. I must speak out in favour of fairness. Some people appear to believe that the making of serious allegations against someone, which have not been tested in any way, is a sufficient basis on which to expect someone to step aside. Allegations are not convictions. There has been no finding of wrongdoing against the Garda Commissioner and I believe in those circumstances she is entitled to our full confidence. It is a matter of fact too that Mr. Justice O'Neill did not recommend that she or anyone else should stand aside. Just as it would be outrageous for some sort of smear campaign to have taken place against whistleblowers, it would be completely wrong for anyone else to be targeted in such a fashion.

Whereas allegations of wrongdoing must be taken very seriously, the need to protect the public is of great importance too. As everybody has said, An Garda Síochána plays a vital role in that regard. The Garda has been confronting many challenges head on, not least in tackling the activities of gangland criminals. We should all be mindful of the dangers of disrupting the leadership of that organisation at a time of great risk to communities and for no established cause. Actions have consequences and it is fanciful to imagine that a temporary Garda Commissioner could be in the interests of An Garda Síochána and, consequently, the community. In short, asking the Garda Commissioner to stand aside in the particular circumstances that have arisen would be neither fair nor in the public interest.

I am conscious that in recent years An Garda Síochána has been hit by a series of controversies. It was against that background that I moved to introduce a range of significant reforms, including the establishment of the Policing Authority. I received cross-party support for that. I indicated, in speaking in the House recently on the justice committee report on governance and accountability, that I will introduce legislation to enhance the powers of the Garda Síochána Ombudsman Commission, GSOC. I met Ms Justice Mary Ellen Ring some weeks ago and agreed that we should do a ten-year review of the GSOC legislation and strengthen its powers. GSOC is also setting up a protected disclosures unit to deal with protected disclosures. We must ensure the various mechanisms that we set up for oversight of An Garda Síochána have all the relevant powers and that they work. It is in the interests of everybody, including whistleblowers and members of An Garda Síochána and other organisations, that they all have the very best mechanisms for whistleblowers to make their case and that such mechanisms work.

We often talk of drawing a line under bad episodes in the work of An Garda Síochána. I do not accept that and it is not about drawing lines under anything. Instead, it is about rooting out bad practices and I am committed to that. It is about putting in place strong, durable and sustainable policies and procedures to prevent a recurrence. We have taken initiatives here, as has the justice committee, and we have made various changes in legislation in recent years. That is the path we are on. Nevertheless, we have received very serious protected disclosures and I responded to them immediately. I asked Mr. Justice O'Neill, a very distinguished judge, to examine them and he has reverted with terms of reference that I have accepted. I have said I will listen to the debate this afternoon and I am open to amending the terms of reference. I must go to Cabinet in that regard.

Reform must be the watch word of An Garda Síochána as reform never stops.

In the meantime we have to deal with the issues that arise, not by making political charge or counter-charge in the House or by pretending to act as a commission of investigation - the House is not such a body - but by putting procedures in place to ensure allegations are fully and fairly investigated. This is exactly what I am doing by stating before the House that the Government has agreed to a commission of investigation and by asking the House to support the development and work of that investigation to ensure the work can be done in a timely way with appropriate terms of reference.

I look forward to hearing what colleagues have to say about the proposed terms of reference. I will take serious note of the points made by colleagues today.

We know that in September last year two protected disclosures were made. I have never seen the content of those protected disclosures but I know from what is in the public domain that in general they allege that a campaign was launched at senior levels in An Garda Síochána to discredit a whistleblower.

When Mr. Justice O'Neill was nominated by the Government to investigate the matter in October of last year, we supported his nomination. We hoped his investigation would produce a conclusive report. We have not had an opportunity to see the complete report of Mr. Justice O'Neill. In fact, all we have seen is what is in the public domain, that is to say, the conclusions and recommendations and the terms of reference he proposed. We are told that the reason the remainder of the report is being redacted is because it affects the rights of other individuals. I take the Government at its word when it says as much. I assume there is nothing in the remaining part of Mr. Justice O'Neill's report - a report that has been seen by no one here - that suggests wrongdoing or makes negative comments about any of the principal actors involved in the issue.

The issue in the past 48 hours has become focused on the personalities and individuals involved. In one corner we have the superintendent and the sergeant. In the other corner we have the Commissioner and the former Commissioner. Members are perfectly entitled to affiliate themselves with either corner and to advocate on behalf of either corner. However, I will not be doing that. I believe the most important thing is to stand in the middle and try to establish the truth. The only way the truth can be established, unfortunately, is through the establishment of a commission of investigation. Mr. Justice O'Neill tried to establish the truth and was unable to do so. A commission of investigation has now been recommended by Mr. Justice O'Neill. It is imperative for the House to agree to this and to establish such a commission of investigation promptly.

The main issue is a net issue. Is it true that there was a campaign seeking to discredit the sergeant at senior levels of An Garda Síochána? Was that encouraged and promoted by the current Commissioner or the former Commissioner? If there is a finding to that effect against any senior member of An Garda Síochána, the position of that senior member would be untenable.

I note the repeated calls for the Garda Commissioner to stand aside. We have not joined those calls. Other Members are perfectly entitled to make those calls. We believe that such a call should only be as a consequence of what was in a commission of investigation report. We believe the commission of investigation should be established first and that the truth should be established. After that, let individuals call for whatever consequence they believe to be appropriate.

When allegations are made against an individual and the individual in question denies those allegations, that individual has an entitlement to the constitutional right to his good name. We do not hear much about that right, but it is a right that has meaning. It is not an anachronistic right. This means that an individual who denies allegations is entitled to defend himself against those allegations. Let us suppose I stand up in the House and make an allegation against a Member and it turns out that the Member denies those allegations. I believe it would be most unfair if, as a result of my making those allegations, the Member would be forced to stand aside. It would also have a more detrimental consequence in terms of the establishment of commissions of investigation. If it were the case that once a commission of investigation is established, the subject of that investigation were compelled to stand aside, then we would never have commissions of investigation because the mere establishment would have a significant consequential effect.

I wish to highlight a point relating to the superintendent who made the protected disclosure. He has a grievance. His grievance is legitimate in that an allegation was made against him that was altogether separate from the issues we are discussing. He denied those allegations. He should not have been suspended from his post in An Garda Síochána. He was entitled to his good name and to defend himself.

I want to get on to the subject matter of the terms of reference of the inquiry. I wish to advocate for two changes that the Minister and the Government should adopt. The first arises in the context of paragraph 1[b] of the terms of reference. The paragraph states: "The allegation of Superintendent Taylor in his Protected Disclosure, that he was directed to draw journalists’ attention to an allegation of criminal misconduct made against Sgt McCabe and that this was the root cause of his agenda, namely revenge against the Gardaí." We support the investigation of that particular issue. However, we believe it is not broad enough. The allegation that the sergeant was involved in criminal misconduct should be investigated in its generality. Under paragraph 1[b], an allegation can only be investigated if it is the subject matter of a communication by the superintendent to members of the media. We believe it should be broader. We are suggesting to the Government that at the end of paragraph 1[b], the following should be added: “Also, to investigate what knowledge former Commissioner Callinan and/or Commissioner O’Sullivan had concerning this allegation of criminal misconduct made against Sergeant McCabe and whether they acted upon same in a manner intended to discredit Sergeant McCabe." We maintain this is necessary because if it is the case that this allegation of criminal misconduct by the sergeant was being used by An Garda Síochána to discredit him, then the matter must be investigated. Unfortunately, the terms in paragraph 1[b], as drafted, simply limit it to communications between Superintendent Taylor and members of the media.

It may be the case that members of An Garda Síochána at senior level used the allegation of criminal wrongdoing on the part of the sergeant to discredit him elsewhere. The inclusion of that paragraph will include coverage for the point raised by Deputy McDonald earlier in her questions today. She asked whether there was any other communication between An Garda Síochána and any other State agencies. That would be covered by the amendment. I urge the Minister to accept the amendment.

The second amendment I am proposing relates to paragraph 1[h]. It refers to the meeting that took place between the former Commissioner, Mr. Callinan, and Deputy John McGuinness. This is in the public domain and is being investigated because Deputy McGuinness openly referred to it on the floor of the House. Let us suppose it is the case that the former Commissioner was prepared to contact Deputy McGuinness to communicate what Deputy McGuinness alleges was said. Then there is also a strong possibility that the former Commissioner would have contacted members of the Government. For that reason, we believe paragraph 1[d] should be amended such that after the words “broadcasting personnel” the Minister should include “and/or members of the government”. If that text is included, it would cover this issue of concern. Presumably, the reason the former Commissioner contacted Deputy McGuinness was because of the position of Deputy McGuinness as Chairman of the Committee of Public Accounts. Similarly, there must be a concern that if the people in question were prepared to contact a member or the Chairman of the Committee of Public Accounts, then they may also have sought to contact members of the Government.

It is important to establish confidence in An Garda Síochána in the public mind. The force plays too important a role in the country for there to be any question mark over senior figures in An Garda Síochána. The commission of investigation is merited and that it will be in the public interest to find out, once and for all, where the truth lies. I am not an investigator. No one else in the House is an investigator. However, what we can do is establish investigations to help us to find the truth. Let us find the truth and let the consequences fall wherever they may.

Mr. Justice O'Neill's inquiry was established in October.

Not only did Fianna Fáil welcome it, we said that it should be extended to include complaints made by other whistleblowers, namely, Garda Harrison and Garda Keogh. Prior to receiving the documentation we got from the Tánaiste yesterday, I was intending to say that the complaints of both officers must be included in the terms of reference of the commission of investigation we are about to establish. However, I am aware, from the Government's statement yesterday, that Mr. Justice O'Neill stated in his report that the commission of investigation should deal solely with the issues concerning the Garda Commissioner and the former Commissioner. I am prepared to abide by that, in the context of its importance and relevance. However, I would argue that we need to establish a proper forum at which the complaints of Garda Harrison and Garda Keogh can be properly, adequately and thoroughly investigated.

Sinn Féin welcomes the terms of reference which have been published. Like the previous speaker, we have also suggested an amendment to those terms. I will read out our amendment, which is based on the same reasoning as that behind Fianna Fáil's proposed amendments. Our amendment would have sought to insert a new section [j], which states, "To investigate contacts between members of An Garda Síochána and members of the Government, members of the Oireachtas and other State agencies relevant to the matters set out in [a] and [b] above." Again, we submitted that amendment for pretty much the same reasons as Deputy O'Callaghan has outlined with regard to his proposed amendments. It is fair to say that if the former Garda Commissioner was willing to contact one Member of this Oireachtas, then there is a possibility that other Members were contacted, including members of the then Government. If that is the case, the matter should come under the terms of reference of the commission of investigation. We also believe that it would be appropriate for the commission of investigation's terms of reference to include the question of whether members of An Garda Síochána at senior level initiated any contact with other agencies apart from the agency referred to by the Tánaiste and Minister for Justice and Equality this morning, namely GSOC. We would encourage the Minister to make such a change to the terms of reference.

It has been a long road to get to where we are today. We have had many controversies involving senior management within An Garda Síochána. We had the penalty points debacle, the Cooke report, the Guerin report, the Fennelly commission and the report from Mr. Justice Iarfhlaith O'Neill. On foot of the latter report into the allegations made by Superintendent David Taylor, we received two items of correspondence from the Department of Justice and Equality yesterday. The rationale for the commission of investigation was outlined in one item of correspondence. It reads as follows:

Mr Justice O’Neill examined the allegations, put them to those against whom they were made and sought the latter’s responses. He also sought the observations of the persons making the disclosures and those against whom the allegations were made on a number of matters, including the form that any investigation into these matters should take.

In light of his inquiries, Mr Justice O’Neill concluded, while he was not in a position to make any determination on the truth or falsity of the allegations, that a Commission of Investigation under the 2004 Act should be established to investigate these and other relevant matters.

Mr. Justice O'Neill then went on to suggest terms of reference for the commission of investigation and we note that the terms of reference published by the Government yesterday are the exact terms suggested by him.

I am glad the Tánaiste is willing to look at the possibility of adding to those terms of reference. She has already heard suggestions from Fianna Fáil - she is hearing them now from my party - on how the terms of reference should be expanded to give the commission of investigation every possible opportunity to investigate all of the allegations fully. As the Tánaiste stated, allegations are not convictions. However, we do not want to find ourselves in a situation where, at the end of commission of investigation process, there are unanswered questions. We have seen that happen with previous commissions of investigation. It is important that the concerns highlighted by me and Deputy O'Callaghan are taken on board and I encourage the Tánaiste to do so.

Sinn Féin is one of the parties asking that the Garda Commissioner step aside while this commission of investigation undertakes its work. That is not to cast any aspersions on the Commissioner. We believe that it is in the interests of transparency and public confidence that the Commissioner would take the decision to step aside. The allegations that are being investigated are truly shocking, particularly the reference to the accusation that Superintendent David Taylor was directed to draw journalists' attention to an allegation of criminal misconduct made against Sergeant McCabe and that this was the root of his motivation for whistleblowing. In light of the fact that the allegations are made directly against the Commissioner and given that there is an issue with public confidence in the force at senior level - not just as a result of Mr. Justice Iarfhlaith O'Neill's scoping exercise but also on foot of all the previous reports and commissions of investigation - it is important that the Commissioner step aside. Again, I take this opportunity to ask the Commissioner to make that move. As I said, that is not to say that there is any truth in the allegations that have been made against her but it is important to allow the commission of investigation to do its work. Serious allegations have been made against the most senior member of the force and for that member to continue in situ while she is being investigated would send out the wrong signals. That is why we have asked her to step aside.

I urge the Minister to take on board the recommendation that Sinn Féin has submitted through our amendment. It is important to give the commission of investigation every possible opportunity to investigate all of these matters fully. I would encourage the Minister to take our amendment on board.

I have sent to the Tánaiste a proposed amendment to the published terms of reference. I hope it will be accepted as I believe it covers concerns that Deputy O'Callaghan and I have raised in public discourse since the draft terms were circulated. Specifically, I do not believe it is sufficient to establish whether allegations of criminal misconduct against Sergeant McCabe were circulated to the media. We must also seek to establish whether such allegations were known to be false, if they were circulated. This may appear to be a technical point but it is one that I hope the Tánaiste will take on board.

I have served in this House for some time and it has been my privilege to do so. I served on both Government and Opposition benches. I also served as Leas-Cheann Comhairle and worked to uphold the rules and norms of this House. I know, perhaps better than many, the responsibility that comes with membership of this House. I do not wear that privilege lightly and nor have I ever sought to abuse it. The contribution I made in this House yesterday was not about party politics. I did not say anything that sought to undermine another Deputy, nor did I apportion responsibility for the matters at hand to any political party or individual.

I could point to examples where serving Members of this House have used parliamentary privilege to do exactly that. What I did yesterday was not in that vein. The only place in which we as Members of this House have absolute privilege in what we say is this Chamber, so we should speak in this place with respect for the responsibility that this brings.

Yesterday morning, I received information that I believed to be of significant public importance. The word "hearsay" has since been bandied about aplenty, but this was not idle chat or pub gossip. I received information which I believe to be credible and which is absolutely germane to a matter about which the Government, in its own careful deliberation, has determined to establish a commission of investigation, thereby acknowledging the significance and importance of these matters. I spoke frankly in this Chamber yesterday, and I repeated the information that had been disclosed to me. I will make myself available to Mr. Justice Charleton to do so again if he feels that I can be of any assistance in his work. I can also inform the House that my source for the information I put on the record yesterday has given consent for their name to be provided also to Mr. Justice Charleton, and has made clear to me their willingness to provide Mr. Justice Charleton with all of the information at their disposal.

More insidious than the allegation that I was involved in circulating gossip was the notion, tabled by Deputy O’Callaghan and others, that what I said was damaging to Sergeant Maurice McCabe. I have spoken to Maurice McCabe today. He confirmed to me that he is of course aware, in specific detail, of all the allegations made against him. He has been aware of them, and he and his family have tried to live with them, for a number of years. I am glad to be able to inform the House that he has expressed gratitude for my intervention yesterday, and in no way regards it as having been damaging in any way to him. The nature of the allegations, as one journalist made clear on radio this morning, have not been a secret. Deputy John McGuinness has previously referred to them as "vile" allegations, but today he thinks I am wrong to have spoken openly about them. The allegations have been circulated around the media, around political circles and around Sergeant McCabe’s colleagues for some time.

The role of the media, as we are so often told, is to speak truth to power. It has been alleged that the media allowed themselves to be used by those with power to denigrate those without. This will be a matter for the commission to determine. If the commission of investigation makes such a finding, I hope it will give the media cause to reflect upon their own actions as much as they have on mine.

I said yesterday that I cannot think of another walk of life where, if allegations of this nature had been made against a person in a position of power, he or she would not be placed on administrative leave pending the outcome of a full investigation. Today we debate the establishment of a commission of investigation. We are told that it may take nine months to report and the media narrative has taken hold that a Garda Commissioner could not step aside for that length of time. This point was also made today by the Tánaiste herself. I believe that view is wrong. Prior to her appointment on a permanent basis, Commissioner Nóirín O’Sullivan served as acting Commissioner for eight months. The idea, therefore, that someone else could act into her role for nine months is not all that far-fetched.

The Garda Commissioner heads a policing service charged with protecting the security of the State, preventing crime and vindicating the human rights of each individual. Yet, at the same time and while still discharging these important, constitutional and onerous responsibilities, Commissioner O’Sullivan now faces a statutory investigation. In the course of this inquiry, the Commissioner’s mobile phones and her phone records for a two-year period are to be examined, as are all Garda electronic and paper files, to see if she or the former Commissioner are implicated in any way in this affair. Nóirín O’Sullivan as Garda Commissioner is the custodian of the very records that Mr. Justice Charleton will examine to see if they disclose wrongdoing by, among others, the Commissioner herself. I believe, honestly and objectively, that this places her in an untenable position.

I reiterate that I have long experience in pursuing truth, particularly in the justice sector. My experience in helping whistleblowers in this sector dates back as far as the establishment of the Morris tribunal, and I repeat that I do not lightly raise issues of the significance that I raised yesterday. We must not forget that at the centre of this commission of inquiry are two protected disclosures and questions around what the former and current Commissioners of An Garda Síochána knew and did. The truth of all of these matters, as others have said, will be determined by an independent commission of investigation. In the interim, all Members of the Oireachtas, both Government and Opposition, have responsibility to ensure the integrity of An Garda Síochána is protected in all our interests.

It remains my view that the reputation of the An Garda Síochána would best be protected if the current Garda Commissioner stood aside until the finalisation of the work of the commission of inquiry. As others have said, the allegations that Commissioner O’Sullivan faces are grave. She steadfastly rejects them, as she is perfectly entitled to do. She may be proven innocent of any wrongdoing, but the opposite is also possible. While Superintendent Taylor stands under investigation, he is suspended from duty, a point well made by Deputy O'Callaghan in his contribution. I believe it is reasonable to apply the same standard to the Garda Commissioner.

There has been much focus on the rights of the Commissioner and why she should not have to step aside while this investigation takes place. Due process and in the interests of justice were terms used by the Minister earlier today. The reason for the decision to not ask the Commissioner to stand aside is that it would open up the whole appalling vista of the second Garda Commissioner in a row being put in the dock, effectively, for corruption. Clearly, corruption goes right to the top in An Garda Síochána. I would have thought that the Garda Commissioner remaining in her place would have a potential chilling effect on others who might want to testify to the commission of investigation. I do not believe this is just about seeking another head to roll. A head was rolled already with the previous Garda Commissioner. Nor is it about putting a shiny new head onto a diseased body, because there is definitely something rotten in the state of the Garda. As long as we have a Garda force that primarily and ultimately defends the status quo and the establishment, it will never be truly democratic and accountable.

The Garda Síochána Ombudsman Commission, GSOC, was set up in the recent years supposedly to tackle these issues. GSOC testified to the Committee on Justice and Equality last summer that it was taking 14 months on average to pursue any investigation against individual gardaí because of stalling by various members of An Garda Síochána. GSOC has said that it happens not infrequently. It happens quite frequently. What are GSOC's powers? Its findings can be rejected and the sanctions it recommends can be overturned and overruled.

One of the key aspects exposed in the terms of reference for the commission of investigation is the role of the media and the very close links and connections the media have with the Garda.

Essentially, what we are seeing is the media, as a propaganda arm of the Garda, having a role in manufacturing consent in society. One of the terms of reference relates to the allegation that the Commissioner might have orchestrated the leaking to RTE of information before the publication of the O'Higgins report to downgrade the reputation of Sergeant McCabe. There are crime journalists virtually embedded in An Garda Síochána. They live off leaks and try to call their work journalism. Crime journalists such as Paul Reynolds and Paul Williams just spend their day reporting exactly what is passed over to them by the Garda.

Let us not forget the media's faithful reporting during the anti-water-charges campaign, for example. It was reported that there were bomb threats against a Minister and that a bullet was sent to a Minister of State in the post. This proved to be utterly fake news concerning an individual who had mental health issues, and it had nothing to do with the water charges issue. There was a claim that 300 gardaí had been assaulted during anti-water-charges protests when, in fact, the figure covered incidents for an entire year and had nothing to do with those protests. The media coverage of the protest in Jobstown is another case in point. The Taoiseach used the word "kidnap" in respect of the events and the media subsequently started to use that term. The charge against protesters then turned out to be one of false imprisonment rather than a breach of public order. It was a much more serious charge.

The Garda has been used to protect and defend the status quo in the interest of the 1%, as the Occupy movement calls those concerned. This is evidenced particularly at times in history when consciousness is awoken and when struggle takes place. It was very evident during the Shell to Sea campaign, and there was a concerted campaign in this regard against the anti-water charges movement. The anti-water charges movement was one of the biggest social and protest movements in this country in a generation.

There are currently protests within the Garda itself. Threats are being issued by the Government and the hierarchy of the Garda against gardaí who are seeking a right to organise, strike and gain access to the Labour Court and State machinery to advance their claims regarding work conditions and pay. They have won in the case in question. It says it all that gardaí are legally barred from striking. Surely it would increase accountability if gardaí began to use the State machinery and began to see themselves more as part of the workforce and the community. There is a concerted campaign to ensure they do not. It is a little ironic, therefore, if individual Commissioners are being defended while threatening gardaí about their right to strike.

It is essential that this matter be fully investigated. Obviously, the Commissioner has to step aside. That would be the norm. It seems the Minister is more interested in how it would look for An Garda Síochána to have a Commissioner step aside than in fully and properly investigating these events. A person can be investigated without any guilt attaching to them. That is the norm and it would be made clear at every turn. One is innocent until proven guilty. The Commissioner stepping aside could not be taken to indicate otherwise.

The issue of the commission of investigation has drawn attention to an especially dangerous and incestuous relationship between the media and considerable elements within the Garda. It is very dangerous for the rest of society and can have significant repercussions. Ultimately, what we need is a police force that is democratic and accountable. GSOC is clearly not enough. In communities, there should be committees of people which interact with the Garda, comment and have an influence on the location of resources and on how the Garda interacts with the community, local workforce, etc. That is very far from being the case here.

I call Deputy Clare Daly.

Deputy Daly and I are sharing time.

I am not sure that is provided for in the Order of Business but I ask the Deputy to proceed.

Will I have time to contribute during another round?

The Deputy might but it is unlikely.

We need to start the clock again.

We need to start the clock again.

The time allocated should be returned to ten minutes. The time is short enough as it is.

Leanaigí ar aghaidh.

We proposed three amendments to the terms of reference. One of them, which was similar to that proposed by Deputy O'Callaghan of Fianna Fáil, concerned investigating information that might have come within the Minister's remit. The second concerned the need to include the other whistleblowers. Central to what this commission of investigation is about is ascertaining how the former and present Commissioners treated whistleblowers. That is at the core of it.

Restricting the period the commission is to investigate to that period up to the end of May 2014, the month in which the present Commissioner took charge, will not result in the full story. It just does not stack up. What has gone on since the current Commissioner took office is so similar to what occurred before May 2014. When the Commissioner and Minister were changed in 2014, there was so much talk about things being done differently. That did not happen. The current Commissioner, who sat at the right hand of the former Commissioner when he called whistleblowers "disgusting", has behaved just like he did in respect of the whistleblowers. It was May 2014 when Nick Keogh made his first allegation. In that year alone, he faced five internal investigations. There was not one before that but five at that time. As soon as Keith Harrison put his head above the parapet, he got barraged from all angles by the hierarchy of the force, which had not changed its spots. When the Minister appointed Commissioner O'Sullivan to the job, did she honestly believe she would get something different from what existed beforehand? Did she honestly believe this would bring about culture change? It did not have a prayer. It was more of the same. It does not stack up that the Minister will not include the period to which I am referring. The Commissioner said on RTE radio a couple of weeks ago, "I have absolutely no knowledge nor was I privy to any campaign to undermine any individual in An Garda Síochána." The Minister can say until the cows come home that the Commissioner is innocent until proven guilty, but I can tell the Minister that I know for a fact that the statement is not true, and the Commissioner knows it is not true. I would be very surprised if the Minister did not know it also. I am convinced she does.

It is stated Mr. Justice O'Neill has considered in his report the cases of the other whistleblowers. Mr. Justice O'Neill does not see a reason to include the confidential reports. Will the Minister tell me how much information Mr. Justice O'Neill got to make that decision? What was he given? What did the Minister give him? What did anybody give him? Did he get the protected disclosures? I would like to know the basis of his decision.

Maybe the Tánaiste will tell me that she has just told me that. When Keith Harrison's solicitor contacted the Tánaiste last October and asked to be included in the process, she made no secret of the fact that they would not be part of it. That was in October 2016. For Mr. Justice O'Neill to tell us now that he sees good reason why they should not be part of it, that is hardly rocket science.

I do not have enough time to go into the other issues. Sadly the O'Higgins report and how she dealt with that and how she was prepared to send counsel in to give false evidence in order to damage Sergeant McCabe should have seen the end of her last summer. However, the Government decided to support her and keep her standing with the support of Fianna Fáil. It was disingenuous of them to do so and the Tánaiste knows it.

These are very serious allegations of an orchestrated and co-ordinated campaign to malign and undermine the reputation of Maurice McCabe to deter people from listening to his legitimate complaints of wrongdoing in An Garda Síochána. They used the vilest allegations to do so. These claims are being levelled against the former Commissioner and the present Commissioner. The Tánaiste has been at pains to say, "Well, there weren't any findings. They're only allegations. They're not convictions." That is true up to a point. However, Mr. Justice O'Neill looked at the evidence, such as it was, and decided that even within that limited information there was enough to establish a commission of investigation. That is not something that happens lightly or happens every other day of the week.

His reason for doing so was that the allegations in the two protected disclosures are not isolated allegations. They come on top of the allegations made by John Barrett, the civilian head of human resources in the Garda Síochána, and the evidence that emerged in the course of the O'Higgins inquiry where counsel for the Commissioner stated that he was ordered to impugn the reputation of Maurice McCabe and to say that he acted with malice, and not just that but that there were two officers there who would verify that he admitted that was his motivation.

Either Nóirín O'Sullivan was privy to that or not. If she did not know about it, why did she not do something about it once she became aware of that fact? For those reasons alone, the Commissioner's position has been untenable for an incredibly long time. It is particularly the case now, given that she is at the helm of an organisation that will control the evidence Mr. Justice Charleton will require to conduct his investigations. In all cases of natural justice in any employment I have been in, if a person is accused of gross misconduct they stand aside pending the inquiry. That is the way it is. It is the way it has been for Dave Taylor and for every ordinary rank-and-file garda; it is doubly important in the case of the Commissioner. That is why one of the amendments we had proposed, had the terms of reference been before us, was precisely to deal with the issue that the Commissioner should step aside.

Our second amendment was a more restricted version of the amendment Deputy O'Callaghan tabled in which we wanted to see included the extent to which the Tánaiste had been briefed by the Garda about allegations of criminal misconduct against Maurice McCabe supposedly forming the basis of his malicious motivation. We are happy to go along with the Fianna Fáil proposal to expand that to include all Members of the Oireachtas.

The most important thing that must be included under these terms and conditions of inquiry is the broadening out to include the allegations of the other whistleblowers. Our amendment stated that the protected disclosures of all gardaí who made such disclosures about bullying, harassment and such treatment, and who wanted to be included, would be included. At the heart of this necessity is that there is an unbroken thread here, precisely the point made by Deputy Wallace, that the smear campaign and tactics unleashed against Maurice McCabe have been experienced by other Garda whistleblowers. The difference between them and Maurice McCabe is that their allegations emerged and their treatment happened solely under the watch of Nóirín O'Sullivan. I have no doubt that the present Commissioner will attempt to distance herself from the allegations and claim it was the responsibility of the former Commissioner and that she was only the girl who made the tea. We need to look at what happened to whistleblowers under her watch.

I am really upset about the point being made and am particularly upset that Fianna Fáil Members have latched on to it because I do not believe they realise the significance of this. Mr. Justice O'Neill has said that he considered the other allegations and that on the basis of that he did not think that they should be included. Deputy O'Callaghan said he thought they should be included until he heard that. Mr. Justice O'Neill did not get any information from those two whistleblowers or their legal counsel. I believe he could only have got that information from the Tánaiste, or else I do not know where he got it from; but he did not get it from them. It is really important that they be included.

I welcome some of the other terms of reference. I am delighted to see RTE included, because I actually made a complaint about that broadcast. RTE wrote back to me and gave out about the personal nature of my complaints and their hostile tone. It claimed they were without foundation and would be defamatory if I repeated them to a third party.

I am glad to have some time to speak on the proposed commission of investigation. As I have said a few times here, this is a very serious situation. We are lucky to have an eminent judge to chair the commission of investigation and other judges as well. As I have said more than once, we will have to put the position of "retired judge" on the CAO form given that we have so many commissions of investigations. Perhaps my good colleague might be in that situation some day. We will be looking at him when we have retired-----

It will be a while before the Deputy retires.

-----or are fired out of here. He will be called on to defend the Government when some other party is in power. That is why I previously told the Tánaiste that I support the Minister, Deputy Ross's, battle over the register of interests. We are lucky to have judges to do this, but we should have full clarification with nothing hidden about involvement in anything else either.

As regards An Garda Síochána, I have been involved in Community Alert since 1986 and have supported the Garda all my life. We must never forget there is a very thin line between them and their duties and the public. No police force can survive without the support of the public. The vast majority of members of An Garda Síochána do that night and day, often in very precarious situations. They often risk life and limb. All too often sadly their lives have been taken and sucked away from their family.

As the Tánaiste said in her speech:

We have to remember that the truth or otherwise of allegations is not determined by their seriousness or their frequency but by the facts. Establishing those facts, without fear or favour, is what I and the Government are determined should happen. [The Tánaiste expressed her gratitude to Mr. Justice Charleton] ... It is of the utmost importance that allegations of wrongdoing by members of An Garda Síochána are fully addressed and there is no doubt that in the past this did not happen as it should have. It is very important that in addressing one injustice we do not create others.

In that vein - tá sé imithe - I was alarmed at the intervention of the former Minister and high priest yesterday, Deputy Howlin. He has experience, including as a former Leas-Cheann Comhairle. He showed arrogance in the past five years and was untouchable. In the last Government he was one of the magic four who ignored the rest of the Cabinet, including probably the present Tánaiste. He certainly ignored us. I questioned him about his role, his party's role and his family's role in the banishment of local democracy. Who was at the head of the Association of Irish Local Government, AMAI? It was someone very close to him. When I served a summons on the former Minister, big Phil the enforcer, in the restaurant here, he laughed at me. It was the first time it ever happened that I was forced to go to the High Court with FLAME, an organisation representing former councillors. We wrote to the AMAI-----

The Deputy is wandering a bit.

I am not wandering.

Deputy Howlin is not here, nor is any Member of his party to defend him.

They had the choice to stay. He spoke enough yesterday morning. I think it was outrageous. We had a situation recently with a journalist asking someone to ask questions. I heard him this morning. It was a case of dúirt bean liom go ndúirt bean léi mar a dúirt tusa, a Cheann Comhairle. It was a case of dúirt bean, fear agus buachaill óg freisin. There was no buachaill or man anywhere to be found. He was backtracking big time. The full story in Tipperary is dúirt bean liom go ndúirt bean léi go raibh fear i dTiobraid Árann a bhfuil póca ina léine aige.

A woman told me that a woman told her that there is a man in Tipperary with a pocket in his shirt. That saying is 50 years old and I would have loved to hear the Tánaiste quoting it yesterday. It is a lovely old adage.

In terms of Leaders' Questions, it was very serious to rush this in. There are only seven Members here now but in terms of polls, Deputy Howlin needed some kind of an outburst. He has serious questions to answer regarding what happened with the AMAI and the management of local democracy. Those questions have been put to him, but he has point blank refused to answer them. He needs to look into that. What happened to the funds given by local authorities to the AMAI? Where did they go? I am not alleging the Deputy has anything to do with that, but where is the money trail?

That has nothing to do with the subject matter of the debate.

I am coming to the subject matter now. It is about how important Deputy Howlin felt the subject matter was and how he could not wait for today. This was scheduled for today by the Business Committee and he knew that from his own representative. Is mór an trua that he did not have the patience to wait for it.

I welcome the commission. It is very important that any wrongdoing is addressed. I have met Garda Wilson and Sergeant McCabe and I know David Taylor and his family, who are a decent family from Tipperary. They are entitled to their good names. A good name is all one is entitled to in this country and one must be allowed to retain it. Privilege or no privilege does not give anyone the right to attack or undermine that. The facts must always be to the fore.

An Garda Síochána does not need this. We see the highly visible members out there in the fight against crime to save our community in Tipperary. They are making a difference and, with the Tánaiste, the Department and An Garda Síochána, grappling with the serious issue of all sorts of crime, including marauding gangs going around attacking them. The first person in all of this is the garda so we need to have the matter cleared up. If the Commissioner is found to have acted wrongly, she will have to pay the price, but I do not like to see two Commissioners being forced out of office. It does not send a good message to the House, the public or to those looking in at us from abroad. While I know the Minister looked abroad in the appointment of the previous Commissioner, it might be best on a future occasion to insist that someone from abroad is appointed to take over. In fairness to the superintendents, inspectors and ordinary gardaí I deal with, including Chief Superintendent Catherine Kehoe in Tipperary and her teams, they do a tremendous job. I have had issues with what went on in a different jurisdiction in Dungarvan this week. I also have issues where I myself was blackguarded and only five of 13 statements were sent to the Director of Public Prosecutions, DPP, while seven were never sent. There were no questions or answers. This only happened in the middle of my own trial. We cannot have that carry on. There must be total transparency.

I supported the Minister's bail initiative here last night and said that I was very concerned about legal aid. For the public to continue to support An Garda Síochána, this must be cleared up. I hope the judge will get to the end of it. It has been dragging on. If there is wrongdoing, it must be rooted out. Above all other organisations across the State, An Garda Síochána is the one we depend on every night when we are in our beds and its members are minding the house. Reference was made earlier to the fact that gardaí threatened to go on strike. It had never happened in the history of the State. As such, I am glad the Tánaiste and gardaí were able to come to accommodation and avoid that because people were frightened. People watching this today and hearing the attacks know they depend on their local gardaí. One cannot beat the garda on the beat, the local man or woman. He or she has to be supported.

We must get to the bottom of this. I hope it will not be a long process and that the eminent judge will get all the information without any difficulty or blockage, including the phone and e-mail information alleged to have been there. I hope none of that will be missing. We have to have that to have confidence. I support the commission of investigation. I have read the terms of reference which could probably be a bit different. No matter what terms of reference one comes up with, however, someone will challenge them.

As I said, we must have faith in An Garda Síochána and the confidence they are out there to serve us, including even the lads outside the gates of Leinster House. My colleague, Deputy Michael Collins, lost his telephone last night and will be forever grateful to An Garda Síochána. He just said it to the gardaí outside and they acted swiftly, above and beyond the call of duty, and Deputy Collins and his phone were reunited this morning. We all know how much information is on our smartphones. There are thousands of simple incidents like that day and night which are dealt with by gardaí in the countryside and urban areas. They also work abroad on service with the United Nations and Interpol and they are tackling the huge issue of gun crime in this city. We do not need any distractions from that.

We need a swift, accurate and in-depth investigation, a concise report and swift action by Government on the recommendations. We must move on from this. Whoever the cap fits must wear it, whether he or she is male or female. It might be a hat or scarf on the female, but she will have to wear it. That is an old saying too. We want to get to the bottom of this. The public and An Garda Síochána deserve no less and, indeed, the whistleblowers and their families are entitled to have their good names cleared. On the other hand, if there is wrongdoing, there must be punishment and retribution. I rest my case there.

I am glad that this is not being put to a vote today at 4 p.m. It is an example of how this is evolving. My understanding at the meeting of the Business Committee only two or three hours ago was that we would be voting on it. I am glad we are not because it is time to pause for thought. This is not an insignificant issue. It is a very important issue at the intersection of the Legislature, the judicial and policing system and the media. It is important that we get our part in that mix right. I am glad there is a commission of investigation, the creation of which the Green Party will support. The reason things have moved on is that the Tánaiste appears to be willing to accept changes to the terms of reference. I listened with interest to what Deputies Jim O'Callaghan, Jonathan O'Brien, Clare Daly, Brendan Howlin and others said in that regard. It is no harm to pause for thought in terms of how the investigation will work. For that reason more than for any other, I am glad we have a little time to think and reflect on this.

What Deputy Jonathan O'Brien said is true. Deputy O'Callaghan's amendment to the effect that there should be early contact with members of Government was broadened by Deputies O'Brien and Howlin to refer to Members of the Oireachtas. That is valid. If Deputy McGuinness was one of the people involved in this, there may have been others. As such, why would we restrict it to Government? I was particularly interested in listening to Deputy Daly's arguments to hear that it should also be extended to include those other incidents of gardaí claiming they too were abused in the process of being identified and targeted as whistleblowers. That is one of the interesting things the Tánaiste might consider in the next few days in the context of how broad this goes.

I want to put another twist or consideration on the matter. I was at a very interesting meeting last week on digital surveillance organised by the Goethe-Institut in Dublin and attended by a range of people interested in digital privacy and the surveillance we are subjected to. I do not know all the finest details of the role of a commission of investigation but I am very glad it will be led by a Supreme Court judge. We have respect for our Judiciary here unlike in some other jurisdictions. The question appears to me to be how far this will go in terms of whether we are giving the commission of investigation the ability, as Deputy McGrath has implied, to look at the phone records of Deputies. To answer the questions that have been raised, that level of investigation might be required. There are difficulties around that. We saw, even today, how inadvertently the raising of a certain issue in the public interest can bring a person's name to public notice in a way that is disadvantageous to him or her. As such, we have to be careful about this. This causes me to question some of our legislation around digital surveillance and how we manage such a process.

Dr. Dennis Jennings, the former head of computer science at UCD, was at that digital surveillance meeting and presented an idea with which some might disagree but which I consider to have a great deal of merit. He said that in setting up digital systems, as we have with our phones and computers, we must have a clear mechanism to review and oversee the guardians who review the digital material in the first place.

We must have a clear and transparent system whereby somebody is looking at the digital data relating to us all. This could affect any citizen as well as any Member of this House. All of those types of data should be loggable, accessible and transparent within safe judicial systems.

This might seem an abstract point that is outside the bounds of the debate, but it is very important if we are looking to investigate who contacted who in this case. Members of the media are historically very sensitive about revealing their sources, who spoke to them, when they spoke and the nature of the conversation, and they will be interested to know how such an investigation is carried out. This is not a clear-cut issue. There probably is scope for a longer-term project here, but it is relevant to the matters we are discussing because we are talking about investigating the contacts between people and the only way to do that is to check telephone records, e-mails, computer logs and so on. I noted Deputy Daly's point that there are concerns to address if the Garda has control of that surveillance-type system. Mr. Justice Charleton has a very difficult job to do, no matter what brief we give him, and how he manages it will be an interesting test case in some ways. I hope consideration is given in devising the terms of reference of the inquiry to the mechanisms for investigating the types of data to which I referred.

I take the Minister absolutely at her word when she talks about the need for reform of the system. Everybody on both sides of the House recognises that our judicial and policing system is in need of reform. We have seen the issues that arose regarding the Garda Síochána Ombudsman Commission, the subsequent retirement of the former Commissioner, Martin Callinan, and the resignation of the former Minister for Justice and Equality, Alan Shatter. One of my concerns is that we do not have a Secretary General in the Department in the midst of this process.

I apologise. I was not aware an appointment had been made. We have an important responsibility in how we do our work. The judgment in the Angela Kerins case last week, as I already pointed out in this Chamber, gives us additional powers, and rightly so. However, as the Supreme Court ruling indicated, this is not a jurisdictional Chamber. In this instance, we are right and it is absolutely valid to set up a mechanism of investigation. We must have somebody to guard the guardians and, in this case, that role falls to us. We must carry out that function in a thorough and sensitive manner. I am glad we are not rushing into it and are giving it at least an additional week.

I look forward to hearing from the Minister if there are other mechanisms she is considering, which amendments she will accept and how the terms of reference might be changed. I would appreciate if she would communicate to other parties and leaders as to how that will be done. If possible, we should have clarity around the mechanisms of investigation when it comes to the issue of access to digital and telephone records. If we are saying we want Mr. Justice Charleton to examine the records of all the journalists involved and potentially Members of this or the previous Dáil, we must ensure it is done right within the context of a proper judicial process. I look forward to hearing from other Members as to how they see that happening in the course of the commission's work.

It is sad that we are discussing these issues today. When the Garda Commissioner was appointed, we were led to believe there would be all sorts of sweeping changes. In reality, unfortunately, she has acted in much the same manner as previous Commissioners. Nothing has changed. In fact, things have got a lot worse. We are going back to the days of the early 1980s when the acronym GUBU, which stood for grotesque, unbelievable, bizarre and unprecedented, was coined. The events we are discussing today are GUBU-esque. Having investigated the circumstances in which there was interaction between the Commissioner and Garda whistleblowers, Mr. Justice O'Neill was incapable of deciphering who was and was not telling the truth. That is what it came down to. It amounts to an incredibly serious allegation when a member of our Judiciary is incapable of saying that the most senior garda in the State was telling the truth. That is why we are now moving towards the establishment of a commission of inquiry.

I do not believe the Commissioner in this matter, having come to that conclusion on the basis of her actions and how she instructed her legal counsel to deal with the O'Neill investigation. This is the most senior police person in the State who knows the legal system better than most. She gave a clear instruction to her senior counsel to show that Sergeant Maurice McCabe was acting with malice, seeking to get his own back on the force and that everything he said was unreliable. The words put out about him were a lot stronger than "unreliable". The Commissioner had the opportunity to clarify her instruction to her legal counsel but she chose to use legal privilege, as she is entitled to do. She opted not to waive that privilege and not to give a full and clear explanation for why her legal team used the methods and tactics it did. In its guide to legal professional privilege, published this month, the global law form DLA Piper states in respect of Ireland: "Note that legal professional privilege can be waived expressly or implied by the "owner" of the legal professional privilege, the client." The Commissioner was the client and if she wanted to explain herself, that was how she could have done it. She chose not to do so.

The information I have been given is that as many as ten journalists were briefed in regard to Sergeant McCabe. The Irish Times states that Superintendent David Taylor has put that on record. Superintendent Taylor was arrested by Detective Superintendent Jim McGowan, who is the Commissioner's husband. In the course of that arrest, Superintendent Taylor's Garda-issue mobile telephone was confiscated. That is the device which held the potential evidence but we do not know where that evidence is or who is in possession of it. It is remarkable that these circumstances were allowed to transpire. Deputy Eamon Ryan spoke about the checking of mobile telephones in evidence gathering. In the past, mobiles were just telephones and back in the 1980s it was a question of tapping a landline. There are now so many different platforms for communication that one cannot say where it starts and ends.

One could not make it up that the Garda Commissioner was investigated by a justice of the State and will now be investigated by a commission of inquiry under a Supreme Court judge, that the Commissioner's husband arrested one of the individuals in question, and that the telephone containing the evidence was taken by her husband and is now missing. I support my colleague from Wexford, Deputy Howlin, whom I have known all my life. He is not somebody who makes things up. He has a serious track record in terms of his dealings with the Morris tribunal and other events in the past. The information he has put on the record is helpful. Superintendent Taylor has been on leave from work for 21 months even though he has not been convicted of anything.

It is appropriate that the Garda Commissioner should step aside. It is important, in the interests of natural justice, that the Commissioner step aside in the interests of An Garda Síochána. The interests of one individual cannot come before those of the police force. There are approximately 15,000 members of An Garda Síochána and if one includes civilian staff, the total number of staff is almost 20,000. Their names and reputations are all in disrepute to some degree when the person at the top faces allegations as serious as those that have been made. The Commissioner should step aside. It is the appropriate thing to do in the interests of the Garda.

At the end of September last year, the Tánaiste and Minister for Justice and Equality, Deputy Fitzgerald, received two protected disclosures and in early October she engaged the services of Mr. Justice O'Neill, who subsequently produced his report. The Tánaiste received that report on 7 December and, this week, two months later, she has published it. The first point I would make is that a period of four and a half months has elapsed. We need to be mindful that the careers of members of An Garda Síochána who are involved and affected by this matter are on hold and it is important that we deal with the issues in as timely a manner as possible. From that point of view, I was somewhat surprised to hear people referring to the fact that when the commission of investigation gets under way, it may well be nine months before it concludes its work. For those who are affected and who may well still be at work, this matter is having an adverse affect on their careers in all aspects and it needs to be dealt with in a timely and efficient manner.

I raised this issue with the Taoiseach and the Tánaiste responded to me. I welcome her reply. I will not read it all, but the Tánaiste wrote:

The Report, which I received on 7 December 2016, sets out in detail the allegations contained in the protected disclosures. In view of the nature of those allegations, and the fact that third parties are mentioned, the Report was referred to the Attorney General for her advice on how to proceed, including the question of what material might properly be put in the public domain, having regard to the rights of all concerned. Advices were received from the Attorney General's Office which raised further issues and which are the subject of ongoing consultation between my Department and the Office. This is with a view to bringing proposals to Government as quickly as possible. These proposals will obviously be guided by the conclusions and recommendations of Mr. Justice O'Neill as regards what further action might be necessary and appropriate.

What was made public this week was quite limited. It was the recommendations and the terms of reference for the commission of investigation which the Government is largely accepting subject to whatever amendments the Tánaiste might accept from the floor today from Members here. Then there is the document, "Statement of reasons for establishing a commission to investigate matters relating to two disclosures made by members of the Garda Síochána under the Protected Disclosures Act 2014". We thought we would see, as the Taoiseach described, a redacted report. We were expecting something more substantial than merely the terms of reference and the recommendations that accompany them, which are quite specific. We are used to reading executive summaries, bullet points, etc., but when trying to engage in such a process, it would have been useful to understand more of what Mr. Justice O'Neill had been reading and what his recommendations were based on. I say that because the document to which I referred states, "Finally, Mr Justice O'Neill indicated that he was aware of other disclosures made by other members of An Garda Síochána ...". We would like to know if he was aware of them in a general way or if he had the specifics and details of those disclosures. That is the type of information we are missing in making a determination on the appropriate terms of reference for this commission of investigation. It is quite difficult to be genuine and fair, having the report in its entirety redacted with only the recommendations available to us.

There is only one other issue that I will refer to because it has already been raised. I refer to the position taken by the Commissioner. The allegations, as the Tánaiste has indicated quite clearly, are very serious and it is not only one person who is affected. What is happening affects the morale of members of An Garda Síochána and public confidence in the force. When the Tánaiste was asked about her position on the Garda Commissioner earlier today, she quite rightly set out the position that the Garda Commissioner is entitled to the presumption of innocence and that she has not been found guilty. That was the manner in which the Tánaiste set it out in reply to Leaders' Questions earlier. In her opening statement on this debate, the Tánaiste said, "We should all be mindful of the dangers of disrupting the leadership of that organisation at a time of great risk to communities and for no established cause." I accept those points. On the other hand - and only the Tánaiste can make this decision because she has the report and we do not - there is a balance to be considered. One of the issues that the Tánaiste must consider in making that decision is whether, with the Commissioner in situ, the confidence and transparency of the commission of investigation being set up is in any way compromised and will stand up to the type of scrutiny that we all would like it to. I am not going to answer that. Nobody but the Tánaiste can do so. However, it is a question that needs to be addressed. The Tánaiste stated that she believes the Commissioner should remain in position and she indicated one set of reasons in this regard. There are, however, counterbalances that must be adjudicated upon and the Tánaiste is the only person who is in possession of the relevant facts.

The point the Tánaiste makes is, "We should all be mindful of the dangers of disrupting the leadership of that organisation ...". I would ask is the Garda Commissioner's position already endangering that organisation. Do the members of An Garda Síochána have absolute confidence in her while these investigations are going on? Those are some of the issues the Tánaiste must make a decision on. While Mr. Justice O'Neill was - as reported - quite clear in his findings to the effect that there was no guilt attached, suffice to say that he did not find that there was no reason for not proceeding with a commission of investigation. That is quite a serious matter. From our point of view, without being able to read the report, an element we would have liked to have seen is the basis of Mr. Justice O'Neill's decision that a commission of investigation is necessary.

My party supports, in full, the amendments that were put forward by my colleague, Deputy O'Callaghan.

I remember when Sergeant Maurice McCabe came before the Committee of Public Accounts. At the time, the controversy in question arose in respect of the penalty points system. Members will recall that Sergeant McCabe stepped forward in an unprecedented way, came before the committee and gave evidence. That evidence was contested. It was certainly my impression, as a member of the then committee, that the system had no appetite for Sergeant McCabe coming before the committee. I am using temperate language in my description of the atmosphere at the time. Nonetheless, Sergeant McCabe came forward, told his story and, for the most part, his allegations stood up. Certainly, his intentions were vindicated, as was the fact that he was acting not from malice, but out of genuine concern. Sergeant McCabe emerged from that episode with this honour and his good name very much intact.

I suppose what this commission of investigation looks to is the behind-the-scenes action, if I could call it that, of the relevant period. In other words, what was going on. Whereas those of us at the front line in the then committee could get a sense of hostility, I could never have imagined the things that are now alleged to have gone on. Let me repeat what I stated to the Tánaiste this morning. These are not minor issues. If even a fraction of these allegations are held to be true, then we have a deep, deep problem within An Garda Síochána. If it is a practice to target individuals in a way that is vindictive, malicious and dishonourable, if that has happened in any way in respect of a serving member of An Garda Síochána, we have a big problem.

We have a problem that extends beyond the Garda because the other allegations suggest a level of collusion among elements of what is called the mainstream media and a question mark over the contacts, and the influence or otherwise, of political figures, be they in government or Members of the Oireachtas. These are very serious matters and nobody contests any of that. Therefore, it is very important to get the terms of reference right.

In large measure, I believe Mr. Justice O'Neill has set the compass in the right direction - let us agree on that. We have moved an amendment to extend the remit to capture any potential contacts between An Garda Síochána and other agencies of the State, that is to say, contacts in addition to the alleged contact with media outlets and political figures. It is important we get to the bottom of that and that we have full knowledge of exactly the extent of communication, and malicious communication at that. Our amendment, which was discussed by Deputy Jonathan O'Brien, captures that.

There is also the issue of the other whistleblowers, which Deputies Clare Daly and Mick Wallace have raised, legitimately so. I can understand the value of having a particular focus within this commission of investigation. I believe what is alleged to have happened to Maurice McCabe warrants in and of itself independent investigation, but that is not to say the complaints of Garda Harrison and Garda Keogh, and perhaps others, must not also be investigated. We need an answer from the Minister. If she is not accommodating the other whistleblowers within this framework and she has a rationale for that, how then will their complaints be answered? Do we need a separate scoping process and another commission? We need an answer to that question.

On the issue of the Commissioner and her position, to set the record straight, because a bit of mischief has been made on this issue, nobody has suggested for a second that her constitutional right to her good name is up for grabs - that is not what has been said. To my knowledge, nobody has argued that we set that aside. However, what is as plain as the nose on one's face is that Mr. Justice O'Neill did feel moved to recommend a commission of investigation. He regarded the question marks over senior gardaí, including the former Commissioner and the serving Commissioner, to be of sufficient gravity to warrant a commission of investigation. I do not know how, in the real world, given that set of circumstances, one could possibly argue for Nóirín O'Sullivan to remain in position. I do not believe that is tenable. I would go further and say it is in her best interest, in my view, in the defence of her good name and reputation, that she would do the sensible and decent thing and stand aside. The Minister should listen not just to those of us on the Opposition benches but, it seems, to those on her own back benches in order that a common sense approach is adopted in this regard.

The points have been well made. I would like to add my voice to the suggestion that the information within the Minister's remit, the information that other Oireachtas Members may have and the contacts they may have had in regard to this matter should be part of the terms of reference of the commission of investigation. I agree that, as Deputies Daly and Wallace suggested, the cases of the other whistleblowers should also be included in the commission of investigation. I agree that the Commissioner should step aside until this investigation is concluded.

The Minister's main defence against the last suggestion is that Commissioner O'Sullivan is entitled to her good name and to due process. Of course, until an investigation is concluded, there is no conviction and there is no definitive certainty on the rights and wrongs of these allegations. However, when serious allegations of this sort are made, generally speaking, it is normal practice in employment or anywhere else, pending an investigation and without prejudice, that people would step aside. This is particularly the case here because, if the Commissioner remains in situ, given we do not know the truth of these serious allegations, she potentially has a position where she could influence the evidence chain relating to the investigation itself. That is simply not acceptable if we want a proper investigation. I do not think it in any way prejudices anybody's good name. It is just sensible practice for people to step aside without prejudice to allow the investigation to be conducted. If the Commissioner is vindicated, or if the investigation into any of the other matters in regard to political or media involvement, or collusion in a possible smear campaign against Maurice McCabe, finds that none of that took place, then people will be vindicated and that will, no doubt, be made very clear and made public in the aftermath. For now, however, she should step aside.

This saga has gone on and on, with Maurice McCabe and other whistleblowers being treated appallingly and every effort being made to stymie them, or at least the allegations are that this has gone on. However, when we have somebody like Superintendent David Taylor, who was close to Martin Callinan and who was operating at a very senior level subsequently with Nóirín O'Sullivan, making the sort of allegations he is making of a scurrilous smear campaign against Maurice McCabe that used the nastiest, most character-impugning allegations about him, it could not be more serious. If there is even a scintilla of truth in this, heads have to roll right along the line. It calls into question the whole culture at a senior level in the Garda, particularly because he is alleging a continuation from Callinan through to the new Commissioner. He is suggesting we are not just dealing with a couple of rotten apples but potentially with a rotten barrel, an absolutely rotten culture, at the most senior level of the Garda, which is trying to smother, defame and intimidate people who are trying to blow the whistle in the public interest about wrongdoing within the Garda.

The Minister needs to take on board what was said today, broaden the terms of reference and insist that Commissioner O'Sullivan steps aside until we get to the truth of these incredibly serious allegations.

I thank Deputies who have contributed to the debate. I am grateful for the acknowledgement from some Deputies that the approach I am taking is the right way to consider this matter, namely, to take some time to reflect on what has been said here today and the suggestions that various Deputies have made. We all recognise the seriousness of the situation.

I have made it clear that we need to investigate them. If any of the allegations were proved to be true, it would have the most serious consequences. A number of Deputies have made the point and I accept it.

I see merit in a number of the suggestions that have been made here today on the terms of reference. A number of the suggestions proposed had fairly widespread support across the House. Deputy Jim O'Callaghan suggested an amendment and made the point that there are two questions at the heart of the commission, including whether there was a campaign against Sergeant Maurice McCabe, particularly using the circumstances surrounding a criminal complaint. A number of Deputies, including Deputies Jonathan O'Brien, Brendan Howlin and Clare Daly, felt there was merit in Deputy O'Callaghan's suggestion. Deputy O'Callaghan felt the terms of reference could be worded in such a way that would deal with it more effectively than the way they are worded now. He thought the wording under the terms of reference could be interpreted as being too restrictive.

I am not sure it is too restrictive. I would have thought it could have covered any allegation or criminal complaint. I have no doubt Mr. Justice O'Neill worded his terms of reference based on the specific details that were alleged to him. The terms of reference give Mr. Justice O'Neill broad scope in conducting the commission and if anything else comes to his attention, it is built into the terms of reference that he can deal with it. Notwithstanding that, I accept that it is right to put beyond doubt the matter Deputy Jim O'Callaghan raised and I will include it fully in the terms of reference. To summarise my approach to it, I agree the commission needs to be fully able to pursue the issue of the criminal complaint being used improperly. I will address the point in the revised draft order which I will put before the Government reflecting the amendment which Deputy Jim O'Callaghan suggested.

A number of Members also made the point that there had been contact with the then Chairman of the Committee of Public Accounts. Deputies raised the question of whether there had been similar contacts with members of the Government. Some Deputies asked whether there had been contact with other Members of the House. If there have been, nobody has put them in the public arena, as far as I am aware. Deputy Jim O'Callaghan suggested that we include in the terms of reference whether there was contact with members of the Government. I accept it, I have no problem with it and it is sensible. I have no objection to doing it. Obviously, I have to go to the Cabinet to change the terms of reference. If the commission is looking at contacts with the then Chairman of the Committee of Public Accounts, it would be reasonable to examine whether there had been similar contacts with members of the Government. I will ask the commission to examine it. I have no difficulty agreeing to it.

Other Deputies have talked about extending it to all Members of the House and agencies. It was Mr. Justice O'Neill who had access to the relevant material and who was best placed to decide how it would be dealt with and make a judgment call on the terms of reference in order to get at the truth. The more changes we make to the terms of reference and the greater the number of matters we ask the commission to investigate, the longer it will take to establish the truth. This is something on which we should seriously reflect. We have had experience of tribunals and commissions that went on for very long times. We must take a reasonable approach that deals with the central issues raised today but does not extend the terms of reference so much that the time period will be much longer. As so many Members have said today, it should be dealt with in a timely way. Deputy John Curran felt even nine months was too long and suggested it should be dealt with in a more efficient and timely way.

There is a provision to amend the terms of reference of a commission of investigation after it has been established, if matters emerge which warrant it. I would have no difficulty pursuing it in the course of the commission sitting and Deputies could always use the mechanism. Some people said the commission's remit should be extended to cases of other people who have made disclosures. As is clear from the statement of reasons, Mr. Justice O'Neill recommends it. Because of the nature of protected disclosures and the rights of confidentiality of the people involved, I have previously explained to the House that I do not comment on individual cases. However, a number of cases are under consideration by GSOC and I do not want to do anything to interfere with any statutory examination or investigation which is currently under way. It is open to members of the Garda Síochána, to make protected disclosures about any aspect of how they believe they are being treated.

Mr. Justice O'Neill decided a commission of investigation was warranted into very specific matters. He described them as unique, given who they were against and the seriousness of them, which we have acknowledged here. It would be wrong to take the view that a commission is the only way we have to examine the issues. GSOC has been given a very specific statutory role regarding these issues and it is very important that it is allowed to do its work. GSOC wants to establish a very specific protected disclosures unit, which would be the appropriate place for such cases to go. I have discussed this with the chairman of GSOC, the Government will support and resource the unit and GSOC is establishing it. I am also doing the ten-year review of GSOC legislation.

I have, at all times, attempted to deal with these issues in the most timely manner possible. Deputy John Curran raised the point. I received the two protected disclosures on Monday, 3 October. I asked Judge O'Neill to review them on the following Friday, 7 October. I received his review on 7 December. The Attorney General gave advice on the complex issues that were involved due to the interaction between the Constitution, protected disclosures and a commission of investigation. Given that it is very complex legally to decide what can be put in the public domain and the various issues, it took time to examine them. However, I have acted in a very timely manner.

One message is clear to me from today's debate. We absolutely must continually work to ensure we have proper arrangements for Garda oversight and accountability. Allegations cannot be resolved here. We must have an effective way of dealing with them in a way that protects those who make disclosures while respecting the rights of all to the fairness which is a cornerstone of our Constitution. I thank the Deputies for the input and I will revert to the House with a revised draft for approval by the House.

Is the Minister saying she believes other agencies of the State or Government Departments are excluded from this? For example, is Tusla excluded or will it be part of the commission's work?

That will be entirely up to the commission to decide. I see no reason, if there is a relevant agency such as the one the Deputy mentioned, that it would not be included in the work of the commission.

That concludes statements on the draft Commission of Investigation (Certain matters relating to two disclosures made by members of An Garda Síochána under the Protected Disclosures Act 2014) Order 2017. In accordance with the order of the House, the next item is weekly divisions, and accordingly, tá an suí ar fionraí go 4 p.m.

Can we not take the weekly divisions now, as most Deputies are waiting?

The order of the House is for weekly divisions to be taken at 4 p.m.

Can we not amend it?

The only problem is people have been told the divisions are at 4 p.m. To change it would be difficult.

Go on ring the bells.

Vote early and vote often as de Valera used to say.

Sitting suspended at 3.20 p.m. and resumed at 4.05 p.m.
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