Dáil Éireann díospóireacht -
Wednesday, 4 Dec 1996

Vol. 472 No. 4

Ceisteanna—Questions. Oral Answers. - Constitution of Special Criminal Court.

Mary Harney

Ceist:

7 Miss Harney asked the asked the Taoiseach, in relation to a newspaper report (details supplied) referred to by him in Dáil Éireann on 12 November 1996, the date on which the report was published; the newspaper in which it was published; the way in which it was drawn to the attention of the Attorney General or his office; when it was drawn to the attention of the Attorney General; the person by whom it was brought to his attention; and if he will make a statement on the matter. [23308/96]

Michael McDowell

Ceist:

8 Mr. M. McDowell asked the asked the Taoiseach, in relation to a newspaper report (details supplied) referred to by him in Dáil Éireann on 12 November 1996, the date on which the report was published; the newspaper in which it was published; the way in which it was drawn to the attention of the Attorney General or his office; when it was drawn to the attention of the Attorney General; the person by whom it was brought to his attention; and if he will make a statement on the matter. [23309/96]

Mary Harney

Ceist:

9 Miss Harney asked the Taoiseach whether the Office of the Chief State Solicitor contacted the Registrar of the Special Criminal Court or the Office of the Director of Public Prosecution in connection with Judge Dominic Lynch's continued participation in the Special Criminal Court; if so, by whom such contact was made; and if he will make a statement on the matter. [23312/96]

Michael McDowell

Ceist:

10 Mr. M. McDowell asked the Taoiseach whether the office of the Chief State Solicitor contacted the Registrar of the Special Criminal Court or the office of the Director of Public Prosecution in connection with Judge Dominic Lynch's continued participation in the Special Criminal Court; if so, by whom such contact was made; and if he will make a statement on the matter. [23313/96]

Mary Harney

Ceist:

11 Miss Harney asked the Taoiseach the way in which the office of the Chief State Solicitor and the office of the Director of Public Prosecutions became aware on the afternoon of Wednesday, 6 November 1996, that the Special Criminal Court was not properly constituted. [22549/96]

The Taoiseach

I propose to take Questions Nos. 7 to 11, inclusive, together.

As I informed the House on 13 November 1996, in reply to supplementary questions to Question No. 1, I understand that the office of the Director of Public Prosecutions first became aware of the problem relating to the composition of the Special Criminal Court at approximately 4.30 p.m. on Wednesday, 6 November 1996. This occurred when a phone call was received by that office from the office of the Chief State Solicitor. I understand that the office of the Chief State Solicitor became aware that there was definitely a problem on the afternoon of 6 November 1996. This occurred on foot of an inquiry from the office of the Chief State Solicitor on the previous day to the Registrar of the court who in turn raised the matter with the Department of Justice. Contrary to suggestions made, there was no contact on the matter between the Chief State Solicitor's office and the Attorney General's office or the Department of Justice prior to 6 November.

The solicitor in the Chief State Solicitor's office who contacted the Registrar of the Special Criminal Court on 5 November is engaged exclusively on work for the Director of Public Prosecutions, who is independent in law in the discharge of his functions. The solicitor's involvement in relation to the question of Judge Lynch's position arose in connection with his work for the DPP and is privileged as between the solicitor and his client. For these reasons, I am unable, as Deputies will understand, to comment on the context in which the solicitor's conversation with the office of the Director of Public Prosecutions took place, beyond indicating as I have done the date and fact of the conversation.

As the Minister of State at my Department, Deputy Carey, informed the House in reply to Question No. 1 from Deputy Michael McDowell on 27 November 1996, the Attorney General read a newspaper reference to Judge Lynch sitting on the Special Criminal Court at the end of October 1996. No one brought the matter to the Attorney's attention. On 29 October 1996, there was a court report in The Irish Times of proceedings in the Special Criminal Court on 28 October in which Judge Lynch's name was mentioned. To the best of his recollection, the Attorney General thinks it is likely that this is the newspaper report in which he saw the reference to Judge Lynch. The Attorney cannot give the precise time or date on which he read this report which, as I have said, appeared in The Irish Times on 29 October.

Miss Harney

Once again we are not being given information, and this time because of privilege. Will the Taoiseach agree that the Director of Public Prosecutions can waive this privilege and has he asked him to do so?

The Taoiseach

It is not feasible or desirable to waive privilege in regard to a current court case in a matter of this nature.

Miss Harney

Will the Taoiseach agree it is important that we know the full facts in this matter, which is very unsatisfactory? If for no other reason, the Director of Public Prosecutions should exercise his right, on the Taoiseach's request, to waive privilege so that we can get the information.

The Taoiseach

It is important to know the facts but it is also important that there should not be any disclosure in respect of a matter which is the subject of court proceedings. I do not propose to make any disclosure in the light of this.

Mr. M. McDowell

Is the Taoiseach suggesting that to tell us the basis of the Chief State Solicitor's knowledge in this matter could prejudice the court proceedings? Is he saying he cannot tell us some of the facts about the way in which State servants came to know about the problems in the Dominic Lynch case as it would endanger their defence of current proceedings in the High Court?

The Taoiseach

The information the Deputy seeks relates to conversations between the Director of Public Prosecutions and the Chief State Solicitor's office in respect of a matter which is the subject of a court case. Apart from giving the date and time of the conversation, which I have already done, it would not be appropriate to outline the content of the conversation which relates to matters currently before the courts.

The Deputy is familiar with the wisdom of not disclosing such information given that the matters in question are likely to be the subject of contest in court proceedings. There is a well established practice that, for example, the consultations between a barrister and his client in any private or criminal case are not disclosed prior to hearing the case. It is an important and well established principle of our legal system that the confidentiality between a client and the person acting on his behalf is maintained, particularly when the matter is the subject of court hearings. The suggestion that this should prudently be lifted in this case suggests that Deputy McDowell does not adequately appreciate the relevance of the general issue.

Mr. M. McDowell

I understand the issues involved. Why is it that when one asks the basis on which people in the State service came to the conclusion that Judge Dominic Lynch was functioning in the Special Criminal Court at a time when he had been removed one is confronted with the answer that privilege is being claimed in respect of this matter? Surely I am entitled to ask the Taoiseach the very simple question how State servants came to know Judge Dominic Lynch was serving in the Special Criminal Court at a time when he ought not to have done. I do not see how the liberty of any citizen or a case before the courts can be adversely affected if the Taoiseach imparts that information to the House.

The Taoiseach

The circumstances in which the relevant arm of the State which is responsible for the administration of the courts, the Department of Justice, came to be aware of this matter and acted upon it have already been the subject of extensive debate in the House. What the Deputy is concerned about is an earlier conversation between two State servants which is covered by client confidentiality. The State's knowledge of the matter took the form of knowledge obtained by, and immediately acted upon, the Minister for Justice in a manner which has already been the subject of extensive discussion in the House. The Deputy knows the position.

Mr. B. Ahern

Does the Taoiseach believe the Attorney General exercised his duties and responsibilities as guardian of the Constitution and protector of the public interest in the context of this affair? When exactly did the Attorney General learn that Mr. Justice Lynch was still serving on the Special Criminal Court and when did he inform the Taoiseach? If the Attorney General did not tell him until 12.45 a.m. on the day in question, did the Taoiseach not ask him why he had not informed him previously when it was obvious that he had known about the matter for several weeks?

The Taoiseach

As the House is well aware, definitive knowledge on this matter did not become available to the Attorney General until the day in question. I was informed about the matter at approximately 12.30 a.m. the following day. It is well known that the Attorney General, who has no direct responsibility for the administration of the courts, raised two queries about this matter in a letter to the Department of Justice. He had no definitive knowledge that the matter was as it subsequently transpired to be until a half an hour before I was informed. The Attorney General acted in this matter, as in all other matters of which I am aware, with exemplary skill and dedication. He is an outstanding public servant and he has carried out his job exceptionally well in this and every other matter, and the Deputies should accept that.

Mr. O'Donoghue

Will the Taoiseach agree that privilege should be claimed sparingly in this House and only when it is absolutely necessary? Nobody can claim privilege in regard to a conversation which took place between State officials on the improper composition of the Special Criminal Court given that everyone now knows the court was not properly constituted. Will the Taoiseach advise the House on whether the Director of Public Prosecutions or the solicitor concerned has claimed privilege and, if so, why?

The Taoiseach

I do not agree with the Deputy's interpretation of the matter. The general rule is that client confidentiality is claimed in all cases. It is prudent that it should be claimed as it is extremely difficult to establish a basis for distinguishing cases where it ought or ought not to be claimed if one goes down the road of claiming it in only some cases. The Deputy, who is familiar with the matter, will fully understand the reasons privilege is being claimed in this case. Given the concerns previously expressed by him and others in the House about this matter and the pending court proceedings which are a matter of public record, it is disingenuous of the Deputy to seek a lifting of privilege in this case. He is trying to some degree to have it both ways on this issue.

Mr. D. Ahern

I think the Taoiseach said the Chief State Solicitor's office became definitively aware of the matter on 5 November. This seems to suggest that it had some inkling of the matter before that date. Will the Taoiseach give a fuller explanation of this point?

It appears the Attorney General read the newspaper report on 29 October. Did he speak to anyone in his office about it? He wrote to the Minister for Justice some days later — the letter was received on 5 November. Does the Taoiseach accept that the Attorney General should have telephoned the office of the Minister for Justice, the Director of Public Prosecutions, the Chief State Solicitor's office or the Registrar of the Special Criminal Court on the day in question to find out if the report he had read in the newspaper was correct? He had known from October there was a problem in the Special Criminal Court?

The Taoiseach

I am sure the Deputy will acknowledge this matter has already been the subject of extensive debate. When I referred to State authorities becoming definitively aware, I was referring to the Minister for Justice becoming aware of the matter.

Mr. D. Ahern

That is not what I asked.

The Taoiseach

I will start again. The Department of Justice is responsible for the administration of the courts. When the Minister for Justice became aware of the nature of the problem she acted immediately. There has been an inquiry and an extensive debate——

Mr. D. Ahern

On a point of order, I did not ask that question. I asked when the Chief State Solicitor's office became aware of the matter.

The Taoiseach

Will the Deputy allow me to answer the question?

An Ceann Comhairle

When questions are asked, the Taoiseach or the Minister concerned must be allowed to reply in their own fashion. I shall allow further questions if there is time.

Mr. D. Ahern

It is like extracting a tooth.

The Taoiseach

Will the Deputy allow me to reply to his question properly? He should not anticipate not getting an answer until I have completed my reply.

Mr. B. Ahern

Christmas is three weeks away.

The Taoiseach

The authorities in charge of the administration of the courts and ensuring they are properly constituted is the Department of Justice. When the Minister for Justice became definitively aware that there was a problem, she acted immediately. As the House is aware, there was earlier correspondence from the Attorney General inquiring about the matter. That correspondence was not dealt with in the way it should have been and that has been the subject of an inquiry. It could be argued that if the correspondence had been dealt with properly, the relevant authority — the Department of Justice — would have become definitively aware of the problem much earlier. Deputy Ahern asked me about the state of knowledge of the Director of Public Prosecutions office and the Chief State Solicitor's office. Neither of those offices is the State authority responsible for the constitution and administration of the courts. They are responsible for preparing cases for the courts or pleading before them——

Mr. D. Ahern

Do they not have an interest in the matter?

The Taoiseach

Of course they have an interest in the matter, but statutory responsibility for ensuring everything is in order in the courts does not rest with either of those offices, it rests with the Department of Justice. In regard to the non-discharge of responsibilities by the Department of Justice in this matter, extensive answers, on the basis of an independent inquiry, have been given to the House. Deputy Ahern asked me for information about the discussions that took place between the Chief State Solicitor's office, the Director of Public Prosecutions and the Registrar of the courts in this matter. I have given the date and time of the only such discussions that occurred. There were no other discussions of that nature. For the reasons I explained to Deputy McDowell, I am not in a position to give anything other than the time and date of the discussions.

The context and content of those conversations are covered by a legitimate and understandable plea of client confidentiality in respect of current important court cases. That has been acknowledged by Members on all sides. It would be prejudicial to the case that needs to be made if one side in those cases were obliged by me or anybody else to release information about internal communications between various people acting for the State in respect of those court cases if the other side was not obliged to make similar disclosures about discussions that may have taken place between client and legal adviser. I am sure Members understand why that principle of client confidentiality is preserved.

Mr. O'Donoghue

I am sure the Taoiseach will accept that the Chief State Solicitor or members of his office are not clients of the Director of Public Prosecutions and that the Director of Public Prosecutions is not the client of the Chief State Solicitor or members of his office. Is the Taoiseach claiming privilege for the Director of Public Prosecutions and the solicitor in the Chief State Solicitor's office or are they claiming privilege through him? Will he acknowledge that any communication between them in regard to the improper constitution of the Special Criminal Court could not affect the cases before the court?

The Taoiseach

The Deputy is wrong in all his assumptions. The Chief State Solicitor's office is acting in a client relationship with the Director of Public Prosecutions. I am not claiming privilege, privilege exists as a general principle of law in respect of client communication with the respective legal adviser.

Mr. M. McDowell

Somebody has to claim it.

The Taoiseach

If a claim of privilege is to be made, it would be made in a court. It would not be appropriate for me to claim such privilege or seek to set aside such a general principle of client confidentiality. In view of the concern of Members about these matters and the issues involved in the court cases, I am sure they will understand why it is appropriate to have client confidentiality in respect of any matters material to pending hearings.

Mr. O'Dea

The Taoiseach now appears to be justifying his refusal to give the information requested on the basis that privilege may be claimed in a subsequent court case.

The Taoiseach

Privilege exists.

Mr. O'Dea

The Taoiseach told the House repeatedly that the Attorney General did not have a role in this matter. Does he accept that the Attorney General is independent in the exercise of his role as guardian of the public interest? Does the Taoiseach accept that the Attorney General decides the ambit of that role and that he made this matter his business? Otherwise, how could one explain him writing letters in an official capacity about the constitution of the Special Criminal Court? Does the Taoiseach accept the Attorney General did the business badly on this occasion? Does he consider it acceptable that the Attorney General should read a newspaper report on a Tuesday when the Special Criminal Court is sitting and write a laconic letter the following Friday? Was the letter of 2 November from the Attorney General made available to the Cromien-Molloy Committee?

The Taoiseach

The matter of the second letter from the Attorney General was discussed with the Cromien-Molloy committee. They did not consider it necessary or relevant for them to see that letter. I indicated that as far as the Attorney General was concerned there was no problem making it available to them if they had requested or required it, but they did not.

Regarding the role of the Attorney General as the protector of the Constitution, Deputy O'Dea is correct. The Attorney General is absolutely independent in regard to the exercise of that function. That means I am not accountable on his behalf to the House in regard to that aspect of his work. I am accountable to it in regard to other aspects of his work and I am answering questions here in regard to this matter on the basis of the other general responsibility I have for the functioning of his office.

I explained to Deputy O'Dea and other Deputies that the Attorney General does not have responsibility for the administration of the courts. That responsibility rests with the Department of Justice. As Deputy O'Dea said, the Attorney General had a role in the matter and that was acknowledged from the outset. Were it not that the Attorney General alerted the Department of Justice to this matter in writing, we would probably have had a very different inquiry in regard to it. That the Attorney General was industrious and alert enough——

Mr. O'Dea

Is that what the Taoiseach calls it?

The Taoiseach

——to make the relevant inquiries put the Department of Justice on notice of a problem on which, unfortunately, it did not act with sufficient speed. It is a matter of public record that although the Attorney General did not and does not have responsibility for administration of the courts, he drew to the attention of the Department of Justice in writing — the most appropriate, recordable and definite form possible — the potential problem. When the Attorney General became aware there was definitely a problem as distinct from an issue which seemed to be unexplained, he and the Minister for Justice acted with great speed on the matter.

Mr. M. McDowell

The Taoiseach said definitive awareness did not arise until a certain point. If people read something in a newspaper and it started the alarm bells ringing in their minds, presumably they would verify the matter before they would waste their time writing a letter. Will the Taoiseach indicate if the Attorney General took any step to verify the newspaper report he read on Tuesday, 29 October last? In view of widespread publicity given to new reforms in the Attorney General's office, is there a record of the date on which the letter dated Friday, 1 November 1996 left that office? Did it go by post or was it delivered by hand? Is there any record of how the letter was sent from that office to the office on Stephen's Green as there is no record of it being received in that office until five days later?

The Taoiseach

The Attorney General took the appropriate step to verify the facts, which was to communicate in writing — the most reliable form possible — with the people responsible under law for the verification of the appropriateness of the arrangements in the courts, the Department of Justice. When the Attorney General read the newspaper report he acted by dictating a letter to the Department of Justice. He was not at that time in possession of the full facts. He addressed his query to the people who were responsible for having the full facts, the Department of Justice. There were a number of possibilities at that time as to why Mr. Justice Lynch might have been sitting on that court. One being that the date of retirement might have been fixed for a later date than the date of the meeting. The Attorney General did not know at the time he dictated the letter——

Mr. M. McDowell

How was the letter sent?

The Taoiseach

The Deputy might allow me to continue.

Mr. E. O'Keeffe

A traceability system should be put in place.

The Taoiseach

The Attorney General was aware the matter was potentially of some moment, therefore, he had directed a letter to the relevant Department, but there were other possibilities that might have existed which were in his mind. The date of retirement might have been set for a later date than the date of the decision, the judge who was to replace Mr. Justice Lynch might not have taken up the office or might not have been able or willing to take up office in that court at that time or there might have been a subsequent Government decision on the matter at which Government meeting the Attorney General might not have been present. It is important to make the point that the Attorney General acted with speed in writing——

Mr. M. McDowell

How was the letter sent?

Mr. D. Ahern

With the speed of a tortoise.

The Taoiseach

——to the Department of Justice in regard to this matter. It is important to make the point again that, unlike others who could have read Irish Oifigiúil or those who might have been aware of this, the Attorney General is one of the only people who put anything in writing in acting on the matter.

Mr. D. Ahern

He is the only Attorney General we have.

The Taoiseach

Others who had access to the relevant information through Iris Oifigiúil or through the newspapers did not take any appropriate step, but the Attorney General did.

Mr. M. McDowell

Will the Taoiseach answer the question?

The Taoiseach

The attempt by Deputy McDowell and others to introduce criticism of the Attorney General in this matter when he was the one person who took action on the matter is misplaced.

Mr. M. McDowell

A Cheann Comhairle, I asked the Taoiseach if there was any record of the letter being sent in the first place.

An Ceann Comhairle

The time for dealing with questions to the Taoiseach is now exhausted.

The Taoiseach

I would like to answer that question in case any suggestion might be made that I am not willing to answer questions on this matter.

An Ceann Comhairle

In accordance with the procedure the time has come to deal with priority questions.

The Taoiseach

The answer to Deputy McDowell's question is that there is a recording system in regard to the typing of letters, but there is no recording system in regard to the date of the issuance of letters.

Mr. M. McDowell

It could have gone out four days later.

The Taoiseach

Letters are typed and recorded on computer as to their date of typing. Information is available as to the date of typing of the appropriate letter. There ought to have been a record of the time of receipt of the letter in the Department of Justice where a date stamping arrangement normally operates. The letter was sent by the State messenger service not by the postal service.

Mr. S. Brennan

That was pre-Luas traffic.

Mr. B. Ahern

I would like to ask many questions but time does not permit me to do so. Somebody must know how the letter was sent to the Department.

The Taoiseach

I answered that.

Mr. B. Ahern

Is the Taoiseach satisfied that the role of the staff in the Chief State Solicitor's office has not been adequately dealt with in the Cromien-Molloy report? On 12 November the Taoiseach told the House he was happy that if all the questions on this matter were not answered during the various debates here — reams of questions have not been answered — he would move the matter to a select committee. Having tried to get answers to our questions for the past four weeks, will the Taoiseach confirm that the matter will now be moved to a select committee?

The Taoiseach

I did not say I would move the matter to a select committee. The Deputy's recollection is faulty on that. I said I would initiate inquiries in regard to any matter or any office not covered in the Cromien-Molloy report. I further said that, if they wished, it was open to Mr. Cromien and Dr. Molloy in preparing their report to inquire into the Office of the Director of Public Prosecutions. They did not do so. It was their decision and it was not as a result of any prompting. As I explained to the House on four or five occasions communication in regard to the matter between the Chief State Solicitor's office and the Director of Public Prosecutions is privileged and covered by client confidentiality. It would not be appropriate for me to initiate any inquiry into that matter until any question of court proceedings arising from the nature and content of such a conversation has been removed by the completion of the relevant court cases.

An Ceann Comhairle

Let us now proceed to priority questions to the Minister for Agriculture, Food and Forestry, Question No. 15.

Mr. Cowen

On a point of order——

An Ceann Comhairle

Order, allow the Chair to make his comment without interruption. We now proceed to Question No. 15.