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Dáil Éireann díospóireacht -
Wednesday, 20 Nov 1996

Vol. 471 No. 7

Death of Cathaoirleach of Seanad. - Order of Business (Resumed).

Is the proposal for a late sitting this evening satisfactory and agreed? Agreed. Is the proposal that No. 8 shall be decided without debate agreed? Agreed. Is the proposal for dealing with No. 9, Supplementary Estimate, Vote 31, satisfactory and agreed? Agreed. Is the proposal for dealing with the Second Stage of No. 3 satisfactory and agreed? Agreed. Is the proposal for dealing with No. 12 satisfactory?

In regard to No. (v) of No. 12, for the past two days we endeavoured to ensure that the questions we tabled to the Taoiseach and the Minister for Justice on this issue would be allowed remain intact but, unfortunately, at every twist and turn yesterday, we were stymied by the Government in this regard. We propose the following amendment to No. 12:

That the words, "When the last speaker's statement has concluded, the Minister for Justice shall take questions; such questions to be brought to a conclusion within one hour", be deleted and substituted by the following: "When the last speaker's statement has concluded, the Taoiseach and the Minister for Justice shall answer Members' questions for a period of at least two hours on matters relating to the delisting of Judge Dominic Lynch and the findings of the inquiry and, given that those who conducted the inquiry felt that the timeframe was extremely limited, the matters above shall be referred to the Select Committee on Legislation and Security for the purpose of questioning all Members, officeholders and persons required by the committee, as they deem appropriate, and that the committee shall meet at 10.30 a.m. on Wednesday, 27 November and shall report to the Dáil as soon as possible thereafter.

We move that amendment to allow the main players in this incident appear before a Dáil committee, as has been the practice in respect of a number of issues raised in this House in recent years.

At last week's Whips meeting it was agreed by all the Whips present that the report of the inquiry should not be scheduled if it affected the admissibility of the questions relating to the matter that were tabled. There are more than 60 questions tabled to the Minister for Justice and the Taoiseach which are two weeks overdue for reply. Will the Taoiseach agree, as a matter of courtesy, as he has done in the past, that those questions should be allowed today? Does he agree that the primary vehicle of accountability is the parliamentary question and that any procedure in the House which obstructs the right of Deputies to information sought by way of parliamentary question should be waived in this instance? The replies sought to parliamentary questions are crucial to the deliberations. Those questions were not responded to in the inconclusive report published last night.

On the basis of the rules of procedure, admissibility of questions is decided by the Ceann Comhairle, not by the Government. It is a long standing rule of procedure that questions which anticipate debate — this debate is scheduled for this afternoon and tomorrow — are not allowed on the day of the debate. That has been the case since the House was founded. If those questions are not fully answered in the debate they can be tabled next week when they will be taken in the normal way if they are otherwise in order because they would then not be anticipatory of a debate and, therefore, would not fall on that ground.

The scheduling of Dáil business, and in particular the scheduling of this report and the debate thereon, is a matter for the Government. The matter was raised specifically at the Whips meeting where it was agreed by all the Whips that it would not be scheduled if it had the effect of obliterating Dáil questions to which replies are expected today. Did the Government Whip explain that to the Taoiseach?

In regard to the disallowing of questions today, the application of Standing Order 34(6), is clearcut. Once my office received official written notice of a proposal to take statements, with a question and answer session, on the inquiry, the anticipation rule had to be applied. The Chair has no discretion in that matter. It is in strict accordance with long standing practice and precedence.

I concur with the expressions of the Progressive Democrats' Whip in this regard. The Taoiseach stated in the Chamber last week that the Government would answer questions on all these issues for as long as was necessary. With that in mind I asked the Government to set aside Standing Order 34 to allow those questions to remain intact, but I was refused. The Order of Business allows questions for only one hour to the Minister for Justice who, in effect, is not responsible for the Attorney General, who has a part to play in this matter. Not only are questions to the Minister for Justice being ruled out of order because of the anticipatory rule, but the questions relating to the Attorney General, who has played a central role in the matter, have also been ruled out of order. That defies logic.

Not only did we seek an assurance at last week's Whips meeting that this report would not be scheduled so that questions could not be ruled out of order, but I raised the matter last Thursday with the Minister for Finance, who took the Order of Business. The issues at stake are serious, particularly those which relate to the roles of the Attorney General and the Director of Public Prosecutions. The second letter from the Attorney General was not published in the report. The report goes as far as the letter "N", the next letter is "O" which would relate to the Minister for Justice, Deputy Owen. It is clear from the report that the matter has been dealt with in an unsatisfactory manner and we need answers to the questions about the DPP and the Attorney General, which I have tabled to the Taoiseach, before we can begin the debate. Unless those questions are answered by the person accountable to this House for those officeholders, who is the Taoiseach, my party is not prepared to participate in a charade today.

I was waiting to see if the Taoiseach would respond to the Fianna Fáil amendment, which refers to a number of issues. I accept the Ceann Comhairle's ruling that if there is a debate questions should be ruled out. That is not the issue and I have no dispute with the Chair. The issue is that the Taoiseach stated last week that there would be full and complete answers to questions. If those questions were ruled out then it automatically follows that the Ceann Comhairle was ruling out the questions because there was a debate and that the Taoiseach has to answer them. The matter is not whether the Attorney General wrote letters, was proactive or was not active. The Attorney General is the guardian of the Constitution and defender of the public interest and has a key role to play in this issue. The person who answers for the Attorney General in this House is the Taoiseach. We cannot have a meaningful debate about this report which was hurriedly put together by two eminent people, and for which the House I am sure is grateful, without getting the answers on the issues from the Taoiseach.

We do not have the letter of 1 November and I raised that matter last week with the Minister for Finance. Will the Taoiseach tell us why he misled the House last Wednesday — I am sure inadvertently — when he told the House that never has a Government published the advice of the Attorney General? Apart from the advice published in 1994 and 1995 by the sub-committees of that period, the former Taoiseach, Charles Haughey, on 13 December 1988 read into the Dáil record a statement by an Attorney General on the reasons for a decision in the Patrick Ryan case. A Fine Gael Attorney General, Mr. Peter Sutherland, publicly defended and commented on his advice to Government in the public debate on the pro life amendment in the 1980s. Will the Taoiseach clarify his misleading of the House and tell me where stands the Attorney General's letter of 1 November and respond to the two issues in the Fianna Fáil amendment? Will he answer questions at the end of a debate on what is an inconclusive report? The gentlemen involved made it clear that they did not have the time to carry out the investigation properly. In page 16 they state:

We are satisfied that, because of the short duration of the Inquiry and the speed with which it necessarily has had to be prepared, this is not possible.

We ask that a committee of the House be set up, perhaps under the Committee of Procedures and Privileges as on 2 July 1982 when Deputy Bruton and his colleagues sought an inquiry which would examine matters relating to telephone issues in the House concerning the then Taoiseach, Mr. Haughey. Alternatively we could follow what happened in autumn of 1994. Before we can move any further, we need answers to these questions. I am not going to participate in a charade by debating matters that are of no benefit to the House.

The Chair has allowed some discussion, especially since an amendment has been tabled to a matter on the Order of Business. That discussion must of necessity be brief. Before I put the amendment in the name of Deputy Dermot Ahern, the Taoiseach wishes to reply.

The Government, as all Governments, is collectively responsible and the Minister for Justice will be answering on behalf of the Government in regard to any matter arising in this debate that affects any component of the Government. Regarding the Attorney General's role as guardian of constitutional rights independent of his role as adviser to the Government, this is a function which the Attorney General exercises independently and he is not answerable to the House through me or anyone else for the exercise of that aspect of his function. In regard to any questions requiring an answer at the end of the debate, I will answer questions in the normal way next week and the week after and every other week subject to my schedule. As I said last week, and the Deputy is correct on this, I will institute further inquiries to get information following questions raised in the debate today or tomorrow that we are not able to answer. There is no problem in providing the information to the House.

I regret that the Progressive Democrats seem to want to postpone this debate. I believe that the approach of the Government in having the debate in the House as quickly as possible is the correct one. Let us have the full report debated and if there are questions arising from the debate that are not fully answered in the question and answer session they can be tabled for next week and can be answered.

It would be more intelligent to have questions and then a debate.

We will believe that.

The Taoiseach will believe it.

I wish to thank Deputy Ahern for raising last Thursday, although I was not here, an issue in regard to the debate. Exchanges took place during Question Time on questions about the Director of Public Prosecutions where I was asked about the publication of advice by the Attorney General. I said what I believed to be the case at the time, that there were no precedents for the publication of such advice to the Government. I have since checked the records and there are precedents in regard to the publication of advice in a very limited range of circumstances, but there are no precedents for publication of the advice of the Attorney General in regard to a matter which is a subject, or potentially the subject, of a current court case.

It will not matter.

Get off the stage.

As the House is well aware, the issue on which the Attorney General was advising is the subject currently of proceedings. Privilege is claimed by the Government on the basis of a normal relationship between legal adviser and client in regard to any communications touching on that court case.

We could do with a few officials like those in the Department of Justice.

Therefore, the second letter is not being published and will not be published.

Selective publishing.

The first letter, which does not contain his legal advice, has been published. The reason for the non-publication of legal advice in a matter which is currently the subject of an important court case is something that any Member of the House who is interested in the interests of the State would fully understand.

I would if I could but I cannot.

I cannot allow discussion to take place. The Chair has been liberal in allowing a debate on the matter but it cannot continue.

I urge the Taoiseach to publish the letter of 1 November. He did not confirm that he is accepting the Fianna Fáil amendment to move this matter to a full committee where it can examine various witnesses at the end to business tomorrow. In fairness to the gentlemen involved, they did not have adequate time. There are more questions unanswered and there are areas which they did not look at. A committee of the House, as has happened many times in the past, can usefully examine various witnesses and call the Attorney General and Minister for Justice before it and go through this matter extensively. It seems reasonable that this House should investigate comprehensively a matter of urgent importance. I ask the Taoiseach to accept that amendment.

The Opposition tabled a motion of no confidence which was debated over two days last week in regard to this matter. The Minister for Justice will be opening a debate on behalf of the Government today which will also go over two days. At the end of that debate she will take questions for a period of an hour. The Minister will be answering fully any questions that are put to her. I believe that meets the case adequately. The Minister will be announcing steps that she and the Government are taking to deal with this matter to ensure there is no recurrence of such events.

More steps first.

For as long as it is necessary.

The best way to proceed would be for the Whips to meet to discuss the matter. I am sure the Labour Party Whip who was present last week will confirm that an assurance was given that the report would not be scheduled if it ruled out questions. The Taoiseach talks about precedents. He promised that he would not follow precedents in many respects and that he would run his Government as if behind a pane of glass. The Taoiseach must be aware that we need to see the second letter of the Attorney General because it is clear from the report that even when the Minister for Justice got that letter she inquired about the wrong judge. That is crucial to the question of accountability and responsibility. It is clear——

(Interruptions.)

Look at page 7 of the report. She telephoned the principal officer and asked about a different judge, even when she had read the second letter.

I did not.

It is clear from the report that nothing happened until the Director of Public Prosecutions made contact. Last week when Deputy Ahern asked the Taoiseach if the inquiry would report into what happened in the Office of the Director of Public Prosecutions and the Office of the Attorney General, he said it would, but it clearly did not.

I did not say that.

For that reason questions must be answered not by the Minister for Justice, but by the Taoiseach as the person responsible for those officeholders in this House. The Taoiseach must answer questions about what those officeholders knew and when they knew about matters before we begin to debate the report. It is crucial we have those answers in advance of the debate.

I will deal with that straightaway. The position is that I quoted from the terms of reference of the Cromien-Molloy inquiry which allowed them to investigate all potential procedures that might be remedied or changed to avoid a recurrence of this matter.

That did not preclude them from dealing with the issue of the Director of Public Prosecutions and his involvement in the matter. The decision as to what they inquired into was, in the final analysis, a matter for themselves. I said last week, and I stand over it, that if further matters not dealt with adequately in the report need to be inquired into, they will be inquired into. In so far as questions asked relating to any other office, including the ones mentioned by the Deputy, where inquiries are relevant — Deputy Dermot Ahern raised relevant questions about that matter — are not dealt with adequately in the report, they will be dealt with adequately otherwise. I can give the House an assurance on this matter. It is important that this matter should be dealt with in a normal and orderly way but there is a difficulty. The Deputy is demonstrating the wisdom of the Ceann Comhairle's rulings on this matter because she is clearly anticipating a debate in which the Minister will be speaking, giving answers, answering questions and so forth. That is the best and most responsible way to deal with this matter. I ask Deputy Harney, in turn, to allow this debate to proceed, to allow the Minister to speak in it, to allow her to be heard, to allow Members on the other side of the House to make their contributions, to then allow the Minister to be asked questions and to answer them and to allow the matter to proceed over the next two days, as is being provided for.

We have no problem with that.

That is the reasonable way to proceed. Any attempt to make the matter an issue of division at this stage when the Minister for Justice has not been heard yet on the subject is unfair to the House and to all those concerned. We need to have this matter presented in a full, comprehensive and responsible way before any judgments are reached of the type reached by the Deputy last week when she tabled a motion of no confidence.

On a point of order, given the admission by the authors of the report that there are unanswered questions, questions which cannot be answered based on the information available to them, and that there is no further information to be given to us except to debate the contents of a report which has not answered all the questions, does the Taoiseach accept that it is within the remit of the procedures and rules of the House that it should organise itself by way of a committee to investigate those questions which remained unanswered, or is he suggesting that the House requires the prior agreement of the Executive for that to happen?

That is hardly a point of order.

It is a point of order that goes to the root of this issue. The point the Taoiseach is seeking to outline is that it will be possible to give full accountability as a result of debating a report that does not have all the answers. Is it within the remit of the rules and procedures of this House and the Taoiseach's understanding of them that the House can organise by way of a committee to ensure that all the questions are answered and all the witnesses concerned are called for the purpose of ensuring full accountability, or is he suggesting to the House that we require the prior agreement of the Executive for that to happen? That is a pretty basic question as regards our rights and obligations as Members of this House. Will the Taoiseach not reply?

I cannot allow this argument to develop.

The House is making arrangements to investigate the matter.

The Executive is seeking to impose its will on the House.

Deputy, the House is making decisions to have a two day debate on this matter on the basis of the report. Having debated the matter for two days last week, we will debate it for two days this week.

With no answers.

There will be questions at the end of the debate. I indicated to Deputy Harney and others that if there are other questions that remain to be answered that cannot be answered in the debate, further inquiries will be instituted to ensure we get the answers and we will come back to the House on that.

There is no "if" about it. The authors of the report confirm there are questions which remain unanswered.

I now call Deputy O'Donoghue for a brief comment and I will then put the question.

The Taoiseach is claiming privilege for the Attorney General's letter of 1 November 1996. In normal circumstances that would be an acceptable argument, but since we already know the essence of the advice the Attorney General gave to the Minister for Justice through public statements made by her and through replies from the Taoiseach to this House, it is clear that all we are asking for is the terminology used in conveying the advice. Since we already know the advice it could not possibly be privileged, so the argument does not stand up. In those circumstances it is incumbent on the Taoiseach and the Government to let us have a copy of the second letter. His failure to do so will undoubtedly give the public the impression that something is being concealed.

The only person attempting to give the public that impression would be the Deputy.

That is very wrong.

He would be doing it for unworthy and partisan motives. Any Deputy who understands the law as the Deputy does will know that in a contested court case the communication between one of the contestants and his or her legal adviser on the matter germane to the court case is not something that ought be published in any circumstances and there is no precedent for any such publication.

On a point of order——

On a point of order——

I have allowed an interchange of views. Further matters must await the debate and the questions and answers that will ensue during and after it. I am now putting the question.

Obfuscation.

A Cheann Comhairle——

I have allowed quite a liberal debate on this matter and the question must be put. Has the Deputy a brief comment to make?

I have a very brief comment. Based on what the authors of the report said, that the report has necessarily been prepared very quickly and should be read in that light, that they have clearly said they cannot apportion blame on this issue and that they have interviewed the Minister, the Attorney General and many others, but have not had time——

What about Barry White and a statement made by one of the Deputy's colleagues?

I suppose the Deputy is opposed to the fact that he will put it on the record.

Will Deputy McCreevy apologise to the House?

I am sure he will. We will not have to ask again for it this morning, unlike I have had to do in regard to the Taoiseach.

Will that Deputy resign?

This matter——

We should not forget Barry White.

Let us hear the Deputy in possession.

This matter requires an in-depth examination and analysis. There is no point in the Taoiseach saying he is anxious to get to the end of the matter, to have detailed questions on it and not to allow a proper debate including the questions tabled by the Opposition. I accept that the Chair ruled them out of order, but they are not part of the debate today. The Taoiseach is not answering on behalf of the Attorney General. We have no guarantee that the matter will be transferred to a committee. All that the Government want to do is to move to a Vote to enable the Government, with its numbers, to rule and dictate the debate.

That is what the Government is at.

I will not participate in that. I decided with my colleagues this morning that we would make orderly points about the Chair's ruling, which we accept, to take the questions as part of the debate, as stated by Deputy O'Donnell, and to try to seek an inquiry by way of a committee of the House, as has happened many times. If the Government does not accept that, I will not wait for a Vote. My colleagues and I will leave because there is no point in participating in a sham.

The Tánaiste is a joke.

(Interruptions.)
Question, "That the words proposed to be deleted stand", put and declared carried.

Are the proposals for dealing with No. 13 agreed? Agreed. Are the proposals for dealing with No. 2 agreed? Agreed. Is it agreed that Private Members' Business this evening shall be No. 5? Agreed. Are the proposals for dealing with No. 12 agreed? Agreed.

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