Priority Questions. - Confidential Settlements.

Liz O'Donnell


4 Ms O'Donnell asked the Minister for Justice if she will implement in her Department the recommendation by the Committee of Public Accounts on 21 November 1996 that the State should never make settlements on a confidential basis, except in exceptional circumstances and then only with the agreement of the Comptroller and Auditor General; and if she will make a statement on the matter. [9377/97]

The recommendation referred to in the question is contained in the First Interim Report of the Committee of Public Accounts on the Appropriation Accounts, 1995, which was laid before this House approximately two weeks ago on 26 March 1997. The recommendation, which came following the committee's examination of the accounting officer at the Department of Social Welfare about a confidentiality clause used in the settlement of social welfare equal treatment payments cases, will fall to be considered by the Minister for Finance in the context of procedures for the settlement of all legal actions against the State. The Committee of Public Accounts also noted that the issue had arisen at a number of the committee's examinations of various Departments in the past. While not wishing to anticipate any debate in this House or the views of the Minister for Finance on the recommendation, I assure the House that my Department will adhere to any instruction or guideline which the Department of Finance may issue on foot of the recommendation.

With regard to confidentiality clauses in settlements in actions taken against the State, the Minister for Justice has political responsibility for the settlement agreed with the journalist Vincent Browne in April 1995 arising from his claim that the State had abused its powers in tapping his telephone during the period 1975 to 1993. Given that this particular——

An Leas-Cheann Comhairle:

The question before me is a broadly based policy question and does not deal with specifics. If the Deputy wishes to table a question on a specific case, she is entitled to do so.

I can anticipate what would happen to such a question. In her reply the Minister referred to confidentiality clauses in settlements agreed by various Departments. The particular deal with the journalist Vincent Browne to which I referred was agreed by the Minister. In light of public concern about this settlement, the fact and amount of which was provided and assured to be secret, how can she justify her agreement to it in view of the controversy that has arisen and the current Administration's credo of transparency and accountability?

An Leas-Cheann Comhairle:

The Deputy has heard the Chair's ruling on that matter.

Will the Minister for Justice reply to my supplementary question?

An Leas-Cheann Comhairle:

The question the Deputy has now introduced involves a specific matter which is not related to the content of the question she tabled.

It is entirely related to that question which referred to confidentiality clauses. My supplementary question involves a particular confidentiality clause included in a deal signed by the Minister.

An Leas-Cheann Comhairle:

The Deputy is correct. The supplementary question refers to a particular case and is not in keeping with the question before me.

I believe and hope that the Minister is willing to answer this question.

An Leas-Cheann Comhairle:

There are other avenues available to the Deputy to raise this matter. However, the Chair has ruled on the issue and that is the end of the matter for now.

I ask that the Minister for Justice be allowed to reply to this question.

An Leas-Cheann Comhairle:

I do not propose to debate the matter now. The House's time is very precious. If the Deputy wishes to table a specific question, this matter will be dealt with and deemed to be in order.

If the Chair had my experience of tabling parliamentary questions, he would be aware that if I put down a specific question on the deal in question the Minister would have had it ruled out of order.

An Leas-Cheann Comhairle:

That is the end of the issue as far as I am concerned. Does the Minister wish to reply to any part of the question which may be appropriate?

I object to the Chair's ruling which makes a farce of the proceedings of this House.

An Leas-Cheann Comhairle:

The Deputy has that right and, if she does not accept the Chair's ruling, there are avenues open to her within which she may take the appropriate action.

The House has been set at naught. This is an issue of current public importance which has been the subject of press conferences.

An Leas-Cheann Comhairle:

At this stage, the Deputy should be familiar with the procedures of the House. They have been explained to her in respect of this situation and she should now resume her seat.

I will not resume my seat.

An Leas-Cheann Comhairle:

If the Deputy does not do so, I will be obliged to ask her another question.

I have rights which are being overridden by the Leas-Cheann Comhairle's judgment in this matter. I believe my question is in order. It is legitimate to raise a supplementary question to my original question which refers to the specific confidentiality clause that is a matter of current public importance. I will not be silenced on this because it is absolutely——

An Leas-Cheann Comhairle:

The Deputy will now resume her seat.

This matter has been debated on the airwaves and been the subject of a call from——

An Leas-Cheann Comhairle:

The Deputy will now resume her seat.

I will not resume my seat.

An Leas-Cheann Comhairle:

The Deputy leaves me no——

I am outraged. This is a scandal. On which Standing Order is the Chair relying to rule my question out of order? It is not out of order.

An Leas-Cheann Comhairle:

The Deputy is questioning the authority of the Chair in respect of a long-standing ruling.

What is the basis of that ruling?

An Leas-Cheann Comhairle:

The Deputy will accept the ruling and I do not have to explain it to her at this time.

An Leas-Cheann Comhairle:

The ruling of the Chair is that the Deputy has raised a specific matter in connection with a broadly based policy question and it is, therefore, deemed to be out of order. That is the end of the matter.

The Minister is hiding behind the Chair's ruling. She is aware this is a natural sequitur to that priority question.

An Leas-Cheann Comhairle:

Will the Deputy resume her seat?

I will not.

An Leas-Cheann Comhairle:

The only option open to me is to proceed to the next question.

I am waiting for a reply to a parliamentary question of the utmost importance.

May I respond to the Deputy's question?

An Leas-Cheann Comhairle:


As the Leas-Cheann Comhairle stated, this question sought information about a recommendation of the Committee of Public Accounts on 21 November 1996. I assume the question was tabled on Friday last. It is a general question about a very general matter. I wonder why she did not table the more specific question to which——

If I had done so the Minister would have ruled it out of order.

Why would I have ruled it out of order?

On the grounds of confidentiality.

The Deputy could have tabled a question and pursued the matter in the way she desired. If the Leas-Cheann Comhairle will permit me, I wish to provide answers to a number of the Deputy's queries.

The recommendation of the Committee of Public Accounts will be a matter for the Minister for Finance to deal with when the report is eventually debated by the House. I must inform the Deputy that, as of today, there are approximately 8,000 cases against the State on hands. That build-up occurred during the past number of years as a result of a backlog with which the State must deal. The vast bulk of cases taken against the State are settled out of court or without the necessity of a court hearing. Deputy O'Donnell may wish to play a little game by putting down a general question and trying to have a different question answered. I am happy to answer the questions she has put, although the Chair has ruled that they go beyond the terms of Question No. 4.

An Leas-Cheann Comhairle:

The Chair has no function in Ministers' answers.

The Deputy has raised the issue in the way she intended given that the occupants of the press gallery were already put on notice to be present so she could have her day in court, so to speak, and show how clever she was to put down a question on a general policy area. I am used to Deputy O'Donnell's little games and the way in which she tries to seduce media attention to show that she is a good parliamentarian.

How would they be put on notice? This is a pathetic performance by the Minister.

I will answer some of the questions she has raised. If she wished to pursue this matter she could have tabled a straightforward question on it. Perhaps she is not acquainted with parliamentary methods.

I know them too well.

I will comment not to breach the confidentiality to which both parties to the agreement formally committed themselves, but because of clearly discernible attempts by Opposition Members and others to misrepresent what happened by down-playing the central role of my predecessor, particularly with regard to the more recent actions in the case Deputy O'Donnell has raised.

The court proceedings initiated in the case, concern events which took place many years ago. Therefore, my predecessor and I had to deal with matters which were not of our making. The law on telephone interception has changed radically in the meantime with the introduction of the Interception of Postal Packets and Telecommunications Messages (Regulation) Act, 1993. Deputy O'Donnell's and Deputy O'Donoghue's parties were in Government between 1987 and 1993. The Act was not passed during Deputy O'Donnell's party's period in Government and I wonder why.

The designated judge appointed under the Act submitted three reports to date which have been laid before the House and in which he has stated he is satisfied the provisions of the Act were being complied with in each period under review, that is the three years since 1993. I have followed this Act to the letter of the law during my period in office and my actions have been subject to independent review as provided for in the Act.

I have almost forgotten the terms of Deputy O'Donnell's question given that she got into such an exercised state with the Leas-Cheann Comhairle.

I would not have got this far otherwise.

I am not hiding behind the Chair. The Leas-Cheann Comhairle is in charge of the business. The Deputy should calm down. She will get the answers she is looking for, although she would have received them anyway had she approached the matter properly.

Soon after I took office on 15 December 1994 I was briefed on the facts of the case which my predecessor had agreed should be settled to avoid a court hearing which would have been prejudicial to the State's interests. A document containing the State's proposed settlement terms had already been agreed. For example, it was agreed that the State should pay compensation to the plaintiff and that there would be a confidentiality clause binding on both sides. As I was coming afresh to the issue, which was already well advanced, I queried the appropriateness of making any such settlement when I was first told of it. Having carefully reflected on the advice given to me by my Department and on strong legal advice, I agreed that the State, through the Attorney General's office, would continue with the settlement negotiations already well under way on the lines which had been presented to me when I first came to know of the matter.

The State's legal team acted from the beginning in April 1994 on the instructions of the Department of Justice. I should emphasise that what was under negotiation at that stage between the lawyers was not whether compensation should be paid or whether there should be a confidentiality clause. A sum had already been offered by way of compensation and proposed terms of settlement had been exchanged with lawyers for the other side in early November 1994. These terms included a confidentiality clause which was to be binding on both sides. Eventually, to meet demands from the plaintiff's legal representatives and on strong legal advice, I authorised an increased compensation offer. The terms set out in November were altered to reflect this increased offer and one or two other minor refinements to the proposed settlement terms were also included at that stage. These latter refinements did not alter in a material way the terms already exchanged in November 1994.

A part of the agreed settlement terms in the case was that either side could, on providing 24 hours notice to the other, issue a statement, the terms of which were agreed. The other party has already published this statement without giving the 24 hours notice. I intend to place a copy of the agreed statement in the Oireachtas Library immediately following the required period of notice to the plaintiff's solicitor. The publication of this statement is not a breach of the agreement reached and was specifically provided for in it.

It is clear that my predecessor, Deputy Geoghegan-Quinn, on departmental and legal advice decided that in the interests of the State confidentiality should be maintained. On examining the case I also decided that such a confidentiality clause should remain. My consideration of the facts in the case was based on the best interests of the State, not party political or other grounds. I acted — as did my predecessor I assume — in my capacity as Minister for Justice on behalf of the State. I stand over the agreement entered into in that capacity. I do not intend to depart from the agreement made in that capacity simply because there is pressure to do so. I cannot be influenced by the fact that the other party has signalled a desire to lift the confidentiality requirement by which both parties are bound. It is not open to the other party to lift the confidentiality provision unilaterally, a provision to which his lawyers formally signalled agreement on his behalf.

With regard to the "Prime Time" programme on this matter broadcast on RTE last night, I sent a letter to the producers of the programme explaining that the agreement had substantially been reached before I became Minister for Justice. For their own reasons they decided not to refer to the letter or to the answer to that question, despite allowing people in the course of the programme to imply otherwise. They did not correct that speculation.

I will deal with three incorrect implications made in the course of the programme. The first is the suggestion that there may have been other transcripts available which were withheld from the plaintiff. All the transcripts — which, incidentally, I did not read — known to be in existence were shown to the plaintiff. That was the State's agreement with the plaintiff's lawyers and the State has honoured its side of the agreement. These transcripts were available to my predecessor.

I want also to nail the implication that the Fine Gael Party has any reason to conceal what happened in the past and that is why I finalised the agreement. That is utterly untrue. I proceeded to do what I judged to be my duty as Minister for Justice. I have been surprised by the comments made by Members of the House and others that in acting as Minister, a Minister for Justice would change his or her opinion willy-nilly because it might harm somebody else. I deal with my work in a more responsible fashion than those who have made such a suggestion. I worry for the State if there are Deputies in the House who think that when they take office as a Minister they can decide to take a course of action because it might have an effect on the Opposition or an Opposition Deputy. That is not a responsible way to act. I have no reason to think my predecessor acted in such a fashion when she decided that the best interests of the State were served by a confidentiality clause.

A third suggestion, made not just on the programme but in other recent contributions on the subject, is that there is something extraordinary about settling a civil action on the basis that compensation will be paid and a confidentiality clause included. The lawyers for the plaintiff were fully involved at all times in the consideration of the case and the negotiations and I am sure, like good lawyers, briefed their client. There was no coercion of which I am aware. I am sure the settlement, when finalised, was agreed with the plaintiff.

While I do not want to turn this into a party political issue, the Opposition parties should talk to and remind each other about sensitive cases settled in the same way when they were last in Government together in the period up to 1992. The Department of Justice had no involvement in these cases.

There is nothing extraordinary in the fact that the State would decide to settle a case and pay compensation. On average, approximately 4,000 to 5,000 cases against the State are handled every year, the vast bulk of which are settled out of court. There is nothing unusual about this. Perhaps, the Deputy will be more forthcoming on the next occasion and tell me exactly what she wants to know.

The Minister said she was bound by the agreement reached between her predecessor and the plaintiff. Is she aware the plaintiff disputes this and that it is his contention agreement was reached with her, not with the previous Administration? The Minister made the remarkable comment that she did not read the transcripts before the agreement was finalised. On what basis did she make her determination it was in the public interest that the matters should remain confidential and that there should be a confidentiality clause, if she did not take the time to read the transcripts? Is she not aware that the plaintiff insists that he agreed the final settlement under false pretences? He was assured in the negotiations and pleadings that all the transcripts dealt with matters of national security. It turned out, however, that only four dealt with such matters, the remainder dealt with political and personal matters.

An Leas-Cheann Comhairle:

In deference to other Deputies who have tabled questions, I do not intend to allow this to continue indefinitely.

The Chair can be assured it will not continue indefinitely as I have given the House all the information I intended to give on this issue. I will not be drawn on the confidentiality aspect of the agreement.

I am not responsible for what the plaintiff said on his radio programme or on television but when asked last night whether the agreement contained a confidentiality clause he replied, "I don't know, I don't recollect". Perhaps he was rowing back on some of his earlier comments. I have outlined what was agreed between the lawyers for the plaintiff and the State in this matter as recorded in the Department of Justice.

The Deputy said the plaintiff is now saying he entered the agreement under false pretences. I deny this. The lawyers for the plaintiff were kept informed at all times. I do not participate in negotiations. The plaintiff agreed that the transcripts would be destroyed after he had read them. He then tried to unpick the agreement after it had been finalised.

When he saw the transcripts.

He subsequently agreed towards the end of 1995 that the transcripts would be destroyed.

In the early stages a member of the Deputy's party was junior counsel in the case. I was surprised when he entered the debate. It is a matter for him to decide whether he was right to do so.

The Deputy knows more about this than I do.

The case, which commenced in 1985, then lapsed. I understand it was reactivated by the plaintiff in April 1994. It was open to him at all times to indicate, through his lawyers, that he wanted to take it to court. It is unworthy and dishonourable to suggest that either the State's legal team or the officials of the Department tried to mislead him and that he entered into the agreement under false pretences.

The Deputy asked why I did not read the transcripts. It was not my business to read transcripts of telephone conversations intercepted 15 to 20 years earlier. On entering the Department I took legal advice and was satisfied that my predecessor, Deputy Geoghegan-Quinn, had acted in the best interests of the State.

It is clear that the settlement reached in this case was based on an admission by the Department that there was wrongdoing by the State which had abused its powers in tapping and producing transcripts of Mr. Browne's private telephone conversations. What assurances can the Minister give to the House that the telephones of journalists are not being tapped by the authorities of the State? What assurances can she give to citizens with a special interest in analysing and assessing subversive activity or organised crime that their telephones are not being tapped? What extra safeguards are in place to prevent abuse of the State's power to tap citizens' telephones? How many orders has the Minister signed?

I have no intention of answering some of the questions asked by the Deputy who should know from experience that she should not ask such questions or expect to receive answers. Interceptions are regulated in accordance with the Interception of Postal Packets and Telecommunications Messages Act, 1993, a feature of which is that the arrangements for interceptions are subject to annual review by a designated judge of the High Court, currently the President of the High Court who has issued three such reports. He was satisfied that the necessary safeguards were in place and that the terms of the Act were being fully complied with to the letter of the law.

The Deputy may have learned from this that in tabling questions she does not have to hide behind subterfuge to obtain information.

I know the Department too well.

The Deputy is impossible.

An Leas-Cheann Comhairle:

The time available for priority questions is exhausted. The two remaining priority questions may be taken in the category of other questions.