Dáil Éireann díospóireacht -
Tuesday, 18 Apr 2000

Vol. 518 No. 3

Liquor Licence Transfer: Statements.

Minister for Justice, Equality and Law Reform (Mr. O'Donoghue)

Last Thursday in the course of my reply to an Adjournment debate in this House I said, in relation to the matter which is again before the House today, "I fully accept that some serious issues have been raised in this case to which answers will be required". That was my view then and it is my view now. I also informed the House on Thursday that I had asked the President of the District Court to examine all the circumstances surrounding the issue of the liquor licence by Judge Donnchadh Ó Buachalla to Mrs. Catherine Nevin and I informed the House that the president had already been in contact with the Judicial Ethics Committee on the matter.

I said I had asked the Garda Commissioner for a report and that he had already initiated inquiries. I informed the House too that I had asked the chief executive of the Courts Service for a report on the case in so far as any court staff may have been involved. Finally I informed the House: "For the sake of completeness, I should mention that my Department had for some time been aware of concerns about the licensing issue referred to and I will deal with this also when I make my statement." In order that the House can be fully appraised of the current state of play, I decided to come here this evening to advise it on where matters now stand. In particular, I want to inform the House of the action which is now proposed in an attempt to deal with important and complex matters satisfactorily.

I can confirm that I received written reports from the Garda Commissioner and the chief executive of the Courts Service yesterday. In regard to the inquiry being conducted by the President of the District Court, the president, Judge Smithwick, wrote to the Secretary General of my Department yesterday and indicated that while he is conducting his inquiry at all possible speed it will, given the need for accuracy and fair play, take some time. I will return to this matter shortly.

Before I say anything further about these reports and the actions I now propose to take, I want to put to rest some unhelpful and unfortunate suggestions which have been made to the effect that I have sought to conceal facts about this case and have sought to mislead this House. These allegations are so much at odds with the facts that all fair-minded commentators will see them for what they are, political gamesmanship, nothing more and nothing less.

It will be a matter of great regret if this House's consideration of the serious matter in hand is marked by a debate which is more concerned about political point scoring than getting at the truth of the issues which concern us all as parliamentarians and are of concern also to those we have the honour to represent.

Looking at the facts, it is quite evident that there was no attempt whatsoever to conceal anything. Without prompting from Deputies opposite or from anybody else, I told the House that my Department had information about this case and that I would deal with this when making a full statement on the matter. The open acknowledgement on my part that I had prior knowledge of at least some of the facts, coupled with an undertaking to provide the details in a more comprehensive statement when all the facts have been assembled, was and still is the proper way of ensuring that this House is fully appraised of the issues involved.

It would be quite imprudent to attempt, in a statement made only a few days after the trial had concluded, to set out a full account of all the circumstances surrounding the issue of the pub licence in this very complex and controversial case. The dangers of saying things without being in possession of the facts will be apparent, for example, to Deputy Higgins who quite wrongly said that Judge Ó Buachalla had been struck off the Roll of Solicitors by the Law Society of Ireland.

Mr. Higgins

(Mayo): His certificate was suspended.

Mr. O'Donoghue

In cases like this it is inevitable that more information will come to hand than would be available to a Minister when making his or her preliminary statement. I understand that there are, for example, papers relating to the licensing matter in other offices – the Revenue Commissioners, the Chief State Solicitor's office, and the Attorney General's office. The critical point, as I emphasised earlier, is that I did not pretend or imply that my statement of Thursday last was other than a preliminary statement. Quite the contrary, I specifically said that my Department had more material and that I would come back to the House and deal with this in the context of a more comprehensive statement. That, to put it mildly, would be an extraordinarily unwise statement for any Minister to make if he or she had a grand plan of concealment in mind. The charge of concealment and of misleading the House, which was made in the mistaken belief that it would procure some political advantage, simply does not stand up. To avoid doubt on the matter, I do not pretend to have all the answers here and now that the House rightly seeks and I will not have them until all the very complex issues involved have been fully examined.

Returning to the substantive issue, it will be apparent to Deputies that we are dealing here with a very serious matter in which the propriety of actions taken by a judge is an issue. There are certain requirements which are absolutely fundamental when matters are under examination which are so grave as to have potential implications for any individual's good name and-or his career. I summarised these requirements as follows on Thursday last:

fair procedures require that the facts must be assembled, that the issues are put to the parties directly involved and that they be allowed time to respond. This is precisely what will happen in this case and is particularly relevant given the conflicting media reports which are emanating. To do anything else at this stage could jeopardise this process and I am sure that on all sides of the House, no one would wish this to happen.

As to the exchange of correspondence in which my Department was engaged, to which I specifically referred in my statement last Thursday with the promise to provide more detail, this arose from letters received by and on behalf of members of the Nevin family. The correspondence from or on behalf of the Nevin family raised queries about the circumstances in which the licence transfer had taken place. At the heart of the questions raised were, first, whether it was lawful for the judge to act as he did and, second, whether in all circumstances the judge had acted with propriety.

My Department's initial letter of response contained the two essential points which are invariably made in cases involving judicial decisions or cases where legal advice is sought. The letter pointed out that the Judiciary is inde pendent in the discharge of its responsibilities. This clearly applied as much to the issue of the licence by Judge Ó Buachalla as it did in any other case. The letter also stated that the Department does not provide legal advice and that it would be a matter for the person's lawyers to deal with that aspect of the matter.

There was, however, further correspondence from the Nevin family and, simply to be helpful in the circumstances of this unusual case, my Department issued a further reply. For the purposes of preparing this reply, my Department contacted the Office of the Attorney General and was advised that counsel's opinion on this matter had been sought for the Garda by the Chief State Solicitor's office. A copy of that opinion was then obtained by my Department.

I do not propose to go into detail on the legal aspects of this matter at this point nor do I propose to provide detail on the advice received from counsel, lest it be said that by doing so I am either favourably or unfavourably colouring Judge Ó Buachalla's actions in advance of the full examination of all the facts, which I believe to be essential and to which I shall shortly return.

My Department did not become involved in correspondence about the second issue raised, that is, the propriety of the actions taken by the judge because it clearly would have been impossible to do anything of this kind without affording the judge the opportunity of commenting. To do that, as I indicated last week, would have required the kind of inquiry which could not be undertaken against the background of the major criminal trial which was about to take place because of the risk that it would be deemed prejudicial to have the bona fides of an important witness formally questioned when he was about to give evidence in the murder trial of the person who was also at the centre of the licensing issue.

It would of course have been open to my Department to deal with the correspondence in question by simply sticking to the rigid and traditional line that the people in question should consult with their legal advisers. Although there is clearly merit in sticking to tradition, I do not regret that my Department tried to be as helpful as possible in the particular circumstances of the case.

In summary, it is fundamental that Judge Ó Buachalla should now be afforded the opportunity of giving his side of the story and the opportunity of commenting on material to hand before I make any detailed statement on the legal or other aspects of this matter. It would have been quite wrong for me, as Minister for Justice, Equality and Law Reform, to initiate a process which would involve questioning Judge Ó Buachalla until the criminal trial had concluded. As to the further investigation of the propriety or otherwise of the actions taken by Judge Ó Buachalla, I am not at all satisfied, on the basis of the reports to hand, that it would be possible for anybody to draw a clear conclusion.

It is now quite apparent that this whole matter is much more complex than anybody, including myself, had perhaps anticipated originally. I can reveal to the House, for example, that in his letter dated 17 April to the Secretary General of my Department, the President of the District Court pointed out that the inquiry which he had been asked to undertake is:

a very serious matter with grave implications. It must therefore be conducted strictly in accordance with fair procedures. It must also establish the facts accurately and not rely on guesswork or innuendo.

The president went on to say that when he met Judge Ó Buachalla in connection with his inquiries, the judge was accompanied by senior counsel and that he – that is, Judge Smithwick – felt that he too would need to instruct a firm of solicitors as well as senior counsel. The only logical conclusion to draw from all this is that several issues will arise in the course of examining Judge Ó Buachalla's role in connection with the licensing of Jack White's Inn and these issues are far from straightforward. My own assessment at this point is that the complexities involved will not end with the matter of legality, propriety or otherwise of issues relating to the liquor licence.

In recent times another matter of very serious import has been brought into the public domain in the public comments that have been made. There have been suggestions to the effect that two members of the Garda Síochána were treated in an unfair manner in Judge Ó Buachalla's court. This relates to allegations made some years ago against the two gardaí in question which were in the name of Mrs. Catherine Nevin. The suggestions made are to the effect that the two gardaí were subsequently treated less than fairly when they brought cases to Judge Ó Buachalla's court.

There is a file in my Department on that issue which relates to the period when my predecessor was in office. As I see it, it will not be possible for the present investigation to be completed unless some of the matters raised at that time and which have again been brought into the public domain are looked at afresh because two of the names that were at the centre of the issues raised at that time were those of Catherine Nevin and Judge Ó Buachalla and the essential complaint was alleged impropriety on the part of Judge Ó Buachalla in the discharge of his judicial office. Nobody would consider the present investigation into the propriety of Judge Ó Buachalla's actions to be anywhere near complete unless the other very serious allegation of impropriety was also revisited in the light of all that is now known.

What I have decided to do, therefore, with the approval of the Government, is to ask the Chief Justice in accordance with section 21 of the Courts of Justice (District Court) Act, 1946, to nominate a judge to conduct a formal statutory based inquiry into all aspects of this case. I have already spoken to the Chief Justice in relation to this matter.

Before I deal further with the mechanics of this inquiry it is important that I tell the House of my rationale for this approach. It is of the utmost importance that all the facts of this case are assembled at the earliest possible date consistent with the right of all parties to fair procedures and natural justice. The issue arises as to what course of action is most likely to achieve this objective. It seemed that the information conveyed by Judge Smithwick in his letter, particularly that in relation to the engaging of counsel, suggested that the possibility of an early report on his inquiry being supplied quickly was unlikely. There is no specific legal provision in place to underpin the type of inquiry being conducted by Judge Smithwick. Moreover the matter to which I referred regarding the allegations made while my predecessor was in office adds a new and important dimension to the inquiry.

In these circumstances the Government is satisfied that the prudent and sensible course is to employ the specific legal provision which was put in place by the House to deal with the type of situation on hand, that is, a statutory inquiry. In deciding on this course of action in no way does it carry with it any imputation that I was unhappy with the approach adopted by Judge Smithwick as he embarked on his inquiry. I am happy to put on record that Judge Smithwick set about his difficult task with alacrity and had already held a meeting with Judge Ó Buachalla.

The key issue – I am sure the House will agree – is that there is an absolute need to ensure no questions are raised about the powers and authority of the investigating judge. Given the nature of the issues in question, and bearing in mind the comments of Judge Smithwick to which I referred, the most appropriate course of action is to invoke section 21 of the 1946 Act which reads as follows:

Whenever the Minister requests the Chief Justice to appoint a Judge to–

(a) investigate the condition of health, either physical or mental, of a Justice, or

(b) to inquire into the conduct (whether in the execution of his office or otherwise) of a Justice, either generally or on a particular occasion, and, in either case, with particular reference to such matters as may be mentioned in the request, the following provisions shall have effect, that is to say–

(i) the Chief Justice shall appoint either a Judge of the Supreme Court or, with the consent of the President of the High Court, a Judge of the High Court to conduct the investigation or inquiry;

(ii) the Judge so appointed may conduct the investigation or inquiry in such manner as he thinks proper, whether by examination of witnesses or otherwise, and in particular may conduct any proceedings in camera, and for this purpose shall have all such powers, rights and privileges as are vested in a Judge of the High Court on the occasion of an action;

(iii) upon conclusion of the investigation or inquiry, the said Judge shall report the result thereof to the Minister.

The Chief Justice has advised this afternoon that he has appointed the Honourable Mr. Justice Frank Murphy, judge of the Supreme Court, to conduct the inquiry. It will be noted that the provision states that the investigating judge shall have all the powers, rights and privileges as are vested in a judge of the High Court. That is the key factor as it will enable the investigating judge to call and question witnesses under oath, to seek papers and documents and so forth. In this regard my Department will be communicating with Mr. Justice Murphy to advise him of the papers held in the Department in relation to this matter. Moreover, it will also be open to Mr. Justice Murphy to seek any papers held in any other office which may have a bearing on this matter.

The question may be asked if this inquiry will be held in public. In accordance with section 21 that is a matter for Mr. Justice Murphy and it would be wrong for me to suggest how he should conduct the business of the inquiry. It may also be asked if it is my intention to publish the reports in question. It is my firm intention to do so when the judge has reported to me. In the meantime clearly I cannot do so because such a step would be inimical to the interests of fair procedure and natural justice. With regard to Mr. Justice Murphy's remit, the terms of reference are being finalised by me in consultation with the Attorney General.

That is where the matter now stands. These are very serious matters and I have put in place the steps at my disposal to establish what happened in relation to the licensing issue and the other matter included in the terms of reference. The important thing is that we give the investigating judge the space in which to discharge his function. Above all else we must avoid saying anything which could cut across the absolute requirement to observe strictly the principles of natural justice and the maintenance of fair procedures. The House and the public we represent are entitled to have the matters raised fully and properly investigated without resort to prejudice, innuendo and other irrelevancies. That is the process I have set in motion and I will return to the House when I have a report that deals fully and fairly with the facts.

Mr. Higgins

(Mayo): In the Dáil last week in reply to questions raised by me on the Adjournment the Minister stated, “For the sake of completeness, I should mention that my Department too had for some time been aware of concerns about the licensing issue referred to and I will deal with this also when I make my statement.” Far from achieving the so-called completeness to which he referred the Minister deliberately withheld from the Dáil the fact that he had received correspondence from the family of the late Tom Nevin in which they queried and expressed serious concerns regarding the transfer of the licence from their late brother to his widow, Catherine Nevin.

The Minister, through his private secretary, replied to Mr. Patsy Nevin on 19 April and 13 August 1999. In his reply of 13 August the Minister spelled out the chronology of events, the applications relating to Jack White's Inn, the dates of the various hearings and his interpretation of the law. All this information was relevant and should have been brought to the attention of the Dáil last Thursday. It was not. The Minister refrained from doing so.

The Minister said that his Department was not going to become involved in the issue of propriety. Yet in his letter of 13 August he stated:

These applications were made in accordance with the rules governing same. Due notice was given and they were all dealt with in open court.

This information should have been provided in the Dáil last week. It was not. The Minister withheld it. Is he still satisfied that all the applications were made in accordance with the rules and that due notice was given in all cases? Is he still of the belief that the court was an open court and not a private sitting?

The Minister admitted last Thursday that his Department had been aware of the concerns about the licensing issue for some time. He should have spelled out exactly what these concerns were. He should also have indicated the sources of these concerns. Presumably he had in his possession the covering report from Inspector Peter Finn from Gorey, dated 14 November 1997, to which I referred in the Dáil last week and which made it quite clear that notice was not given as required by law. Inspector Finn said, "I was not on notice." He also stated, "This application was made in Chambers"– a private court, a private sitting in the back room of a courthouse. He named the other four persons, other than the judge, who were present.

I assume that another document the Minister had in his possession or was apprised of was the report on the proceedings, which he withheld from the Dáil, drawn up by Garda Superintendent J. P. Flynn in which he states:

What transpired prior to the 19th of March 1996 and subsequent renewal of the existing licence for Jack White's Inn on the 29th of September 1997 has to be, in my submission, highly irregular, unlawful and without precedent in law.

He goes on to state that the statutory requirement for legalising the position which pertained to the existing publican's licence in respect of Jack White's premises after the murder on 19 March 1996 of Tom Nevin was totally ignored. The requirement to make application to the District Court under statutory provisions to legalise the licence situation in respect of Jack White's licensed premises after 19 March was totally ignored. The statutory requirement to put the superintendent in charge of the court area of the Garda district where the premises is situated on required notice of any such application was not complied with. The application was incorrect and unlawful. He, therefore, said that incorrect procedures were used without foundations or legal justification in law.

The Minister has clung to the defence that he could not conduct inquiries while the Catherine Nevin trial was in progress. That argument is untenable. There was nothing to prohibit the Minister conducting whatever inquiries were necessary. These inquiries would not have prejudiced the trial. Had they been conducted, the report of what exactly happened could have been available after the Nevin trial had been concluded. The Minister's delay in coming to grips with this issue has contributed in no small measure to the current state of uncertainty and delay. Every day that passes, public confidence in the judicial process, which is the cornerstone of the Constitution, is further undermined.

Mr. Quinn

What is at issue here is the conduct of justice in our society and the belief by citizens that everybody is equal before the law and is treated equally when they come before a judge.

Section 21 of the Courts of Justice (District Court) Act, 1946, enables the Minister to request the Chief Justice to appoint a judge to inquire into the conduct of a district judge whether in the execution of office or otherwise. For the purpose of the inquiry, the judge so appointed is given all the powers, rights and privileges of the High Court hearing a civil action. As far as I know, this section has not been invoked by a Minister for Justice, Equality and Law Reform. That in itself is an indication of the seriousness of the matter with which we are now dealing.

The immediately preceding section of the 1946 Act deals with the tenure of district court judges and confers on them the same rights of tenure as High Court and Supreme Court judges which they enjoy by virtue of the Constitution. Under that section, therefore, District Court judges are removable from office only for stated misbehaviour or incapacity on foot of resolutions passed by both the Dáil and the Seanad. The step just announced by the Minister, depending on the contents of the report furnished to him and then published by him and presented for consideration to this House, may become the first step in a process for the removal by the Houses of the Oireachtas of a judge from office on grounds of misconduct.

In light of the gravity of this situation, the questions being asked of the Minister about his handling of the matter cannot be dismissed as Opposition backbiting. We know the Minister was alerted more than a year ago to the concerns raised by the family of the late Tom Nevin about the validity of the procedures adopted by Judge Ó Buachalla. The Minister did not reply by saying either that he had no function in judicial matters, the usual response from his Department in such cases, or that it would be inappropriate to investigate until a forthcoming criminal trial was out of the way. Instead his private secretary replied on the Minister's behalf dealing with the substance of the Nevin family's complaint. The impression was strongly conveyed in so many words that the Minister and his Department were satisfied that appropriate statutory procedures had been complied with.

If that was the Minister's view, what changed so that last week it was thought necessary to mount three separate inquiries involving the gardaí, the Courts Service and the District Court President, Judge Smithwick? How could the Minister have been so decisive in his reply to Patsy Nevin if further inquiries are now required? Was the Nevin family being fobbed off with a reply which was based on incomplete and inadequate inquiries? Whatever the reason, this House was entitled to be told last week of the Minister's previous involvement in considering and effectively adjudicating on the issues which a High Court is now being asked to examine afresh in a sworn inquiry. We are entitled to know to what extent the Minister was personally aware of or involved in the correspondence with the Nevin family.

It is now reported that both the gardaí and the court staff were unhappy with the approach adopted by Judge Ó Buachalla. Judge Smithwick has yet to express a view on whether it was appropriate for the judge to consider this application in the first case, given the circumstances of his connection with the applicant. The Minister knows nothing from either the gardaí or the court staff which he could not have found out more than a year ago when this issue was first raised with him. There is no reality to the statement that such informal inquiries by him would have been inappropriate in view of a pending trial on a charge of murder. The Minister has yet to persuade me or the public that he has information in his possession today to justify this appointment which he could not have found out long ago if he had been handling the issue in an appropriate, timely and decisive manner.

The current controversy has highlighted the urgent need once again for the introduction of a judicial code of ethics and the establishment of a judicial council to consider complaints of improper actions by members of the Judiciary. The All-Party Committee on the Constitution published its fourth report last November and recommended both these initiatives, but so far nothing has been done by the Government to bring them into effect. There is a need for procedures to deal with situations where judges may have acted improperly short of the steps provided in the 1946 Act or the even more extreme measure of a vote for impeachment by both Houses of the Oireachtas. The independence of the Judiciary must be upheld but if the judicial system is to retain the confidence of the public, we need procedures to deal with legitimate complaints by the gardaí or the public where a judge may have acted in an improper manner. Early legislation to give effect to the recommendations of the All-Party Committee on the Constitution is now essential.

The Sheedy case last year raised legitimate fears that all members of the public were not being treated equally before the law and that those who had access to members of the Judiciary were open to being treated in a more favourable manner. Unless we get answers to the questions which arise in this case and the appropriate action is taken, if warranted, when the report is available, this perception will be reinforced.

Another matter which arises in this case is one for which the Minister has direct political responsibility. There is serious concern in Wicklow at the manner in which two members of the Garda Síochána have been treated. They made complaints to the Garda authorities about the manner in which Judge Ó Buachalla dealt with cases they brought before him. They have apparently been confined to desk duties for almost five years and their career prospects have suffered as a result. There is a need for the Minister to examine whether an injustice has been done to the two gardaí in question and, if so, to look at ways in which that damage can be undone.

Mr. Timmins

There is much concern in my constituency in Wicklow about the granting of the licence and related matters, the suspension of the gardaí and other peripheral issues. Did Inspector Finn attend a previous court sitting in Gorey where the issues surrounding the granting of this licence or related matters were discussed and was the case adjourned to Wexford? Was the fact the inspector realised the case had been adjourned to Wexford but he was not notified the only reason he turned up? Did the inspector or the court clerk in Wexford object to the manner in which proceedings were being carried out and, if so, did Judge Ó Buachalla adjourn the case from midday until early afternoon?

Mr. Rabbitte

How can the Minister answer if he does not hear the questions?

Mr. O'Flynn

He is listening.

Mr. Timmins

When the court reconvened in the afternoon did the inspector or the court clerk object again? When was the initial early morning licence granted and who granted it? Did the gardaí make any objections at that time? Has the early morning licence been revoked or is it still in force? I would like to refer to the matter of the two gardaí who were suspended.

An Leas-Cheann Comhairle

I would ask the Deputy to be brief and to ask brief questions.

Mr. Timmins

I will be brief. Deputy Quinn rightly referred to this issue. Will the Minister examine how the complaint was made and who accompanied the complainant when it was made? In light of the fact that the Minister has decided that the judge should be allowed practise and that his position should not be prejudiced, will the Minister consider reinstating the two gardaí to full duty?

Is the Minister aware of whether a directive was issued to gardaí in Arklow in or around the mid-1990s instructing them to desist from visiting Jack White's in an official capacity? If this is so, on whose authority and on what basis was this instruction issued?

Inspector Finn's report was relayed up the line by Superintendent Flynn. Who was the final arbitrator of this report? Who decided that nothing should be done? What steps were taken by the person who received the report?

Mr. O'Donoghue

The Deputy has raised questions relevant to the inquiry about to be conducted. I mean no disrespect to the Deputy or the House but matters of detail mentioned by the Deputy will have to be confined to the judge conducting the inquiry. However, a search conducted over the past few days found no evidence that two Garda reports were forwarded to the Department. We will continue to search for fear that the contrary should be the case but, on the face of it, there appears to be no reason the Department would have sight of what was, after all, an internal Garda document. I regret that I am constrained in what I can say about the detail of this case and I am being in no way patronising when I say that I understand Deputy Timmins's genuine concerns. However, I cannot say anything which would prejudice the inquiry.

Mr. Quinn

When was the file prepared by Inspector Finn received by the Department and was it forwarded to the law officers as requested by the inspector?

Mr. O'Donoghue

As I have explained, I have no report from any garda of which I am aware. Searches have been carried out in the Department but we have been unable to find any such reports. As I outlined, we replied to the Nevin family and to representations made on their behalf. However, I have no record of such reports at this point.

Mr. Quinn

I appreciate that the Minister is speaking from memory but will he clarify that there is no record in the Department of receiving the report from Inspector Finn?

Mr. O'Donoghue

As I said, I have had investigations and searches carried out in the Department but I have no record at this point of such a report. I have asked officials to continue with further searches just in case such a report did arrive. However, I have no record of it.

Mr. Higgins

(Mayo): When and by whom were the difficulties surrounding the validity of the licence transfer procedures first brought to the Minister's attention? The Minister's private secretary replied on his behalf to Patsy Nevin on 13 August. Before this reply was issued, did the Minister consult Inspector Finn or Superintendent Flynn as to what had transpired in court on the day the transfer order was made and, if he did not do so, why?

Mr. O'Donoghue

I do not believe it related to the licence but I recall concerns being raised with me about the Nevin case. I could not identify the precise nature of these concerns but in the back of my mind I recall a councillor from Galway raising the Nevin case with me when I was in Opposition. Of that I am relatively certain. I am also certain that at least one Deputy, Deputy Burke, raised the matter with me as a result of reports.

As regards other people raising this matter, after I became Minister correspondence arrived in the Department for and on behalf of the Nevin family. As regards these queries, the genuine objective of the exercise was to try to be as helpful as I could possibly be to the Nevin family. I realised the trauma of all the events and was trying to ascertain whether we could be helpful to them in terms of what happened over the transfer of the licence. All we did was assemble facts from the District Court clerks and transfer those facts to a member of the family. That is as I recall events. There was no question at any time of my conducting any inquiry into the legality of the transfer. Certainly there was no question at any time of my conducting an inquiry into the propriety of the judge in question. I am not casting aspersions on him or on what happened when I say these things. I am genuinely saying that when I replied to the Nevin family through my private secretary, it was done out of a sense of trying to be helpful and there was no question of anything covert. That is the truth.

Mr. Higgins

(Mayo): In his letter to the Nevin family the Minister told them that correct procedures had been followed, that proper notification had been made and that the case was heard in open court. The Garda hotly disputes this as is obvious from Inspector Finn's report and the very trenchant report from Superintendent Flynn. Why did the Minister, his private secretary or the Department not contact the Garda for its version of events?

The Minister told the House that the version of events as relayed by him to the Nevin family were elicited from the District Court clerks. What are the names of the clerks in question and did they confirm that correct procedures were followed? My understanding is that the District Court clerks, particularly Mr. Sexton in Arklow, were seriously unhappy with the procedures and that was the reason the hearing was transferred from Arklow to Wexford.

Mr. O'Donoghue

As I understand it, the two District Court clerks in question were Mr. Sexton and Mr. Cullen. The letter written to Patsy Nevin dated 19 April 1999 simply set out certain facts. It was in no way judgmental but set out certain facts as I had ascertained them. I did not seek the opinion of anyone as to the propriety of the judge's behaviour. I could not and would not do so because it was clear that this matter was going to travel onwards. It must be understood that if I had interfered in any way in this matter, it would have been open to defence counsel to raise this matter during the trial with consequences which I could not have foreseen then or could categorise now other than to be certain that it was a risk I should not take. If I had taken such a risk and had prejudiced the trial and the accused had been found not guilty, for example, or if the case had been withdrawn from the jury because of my interference, Members would correctly criticise me. That was a risk I could not take, nor could any Minister.

As regards who the notice parties were, whether notice was given, who gave it or who should or should not have given it, without being in any way dismissive of Deputy Higgins's queries, neither I nor the Deputy is in a position to be definitive in terms of the High Court judge's conclusions. For what it is worth, I would advise the Deputy to await the High Court judge's conclusions before jumping to conclusions in this matter.

Mr. Quinn

Why did the Minister not tell the House last Thursday about the correspondence from his private secretary to the Nevin family? Did he subsequently tell us about it because it came into the public domain over the weekend?

Mr. O'Donoghue

No, certainly not. I indicated to the House on Thursday, in the course of an Adjournment debate, which we all know is a very short debate, that there was correspondence. I also indicated to the House that concerns had been raised with my Department. I outlined to the House that it was my intention to make a comprehensive statement when all the facts had been assembled and all the reports were available to me. That, obviously, is my duty and is what I intended to do. There was no question – I deeply resent any such suggestion – that there was any concealment on my part. That would be farcical.

An Leas-Cheann Comhairle

I call Deputy Quinn.

Mr. Rabbitte

Why did the Minister tell the Nevin family everything was proper when it was not?

An Leas-Cheann Comhairle

Deputy Rabbitte must allow Deputy Quinn ask his question.

Mr. Quinn

Was the Minister concerned when he first heard about the suspension of the gardaí in question? Has he taken steps to find out why they were confined to desk duties and why that has continued?

Mr. O'Donoghue

My understanding of the position is that concern has been raised in relation to the two gardaí. These concerns were not raised with me in my capacity as Minister for Justice, Equality and Law Reform but with my predecessor, Deputy Owen. It seemed, on looking at the matter and in the light of the allegations which are now being made, that all the matters and allegations in regard to impropriety should be looked at. The issue of the two gardaí will be included in the terms of reference.

I state categorically that I have no recollection of this. I am adamant that I did not directly receive queries in regard to the two gardaí during my term of office, although, as the Deputy will be aware, there were reports, particularly in recent times, in regard to the gardaí. The Deputy has raised the issue of the gardaí here this evening. It is appropriate that these matters be looked at afresh in the light of the recent allegations.

Mr. Quinn

Since this matter first came to the notice of the public and the Minister, has the Minister made direct inquiries to the Garda Commissioner about the status of these gardaí? Has he raised this matter directly with the commissioner since last Thursday? Does he intend to do so? Does he intend to ensure these two gardaí are restored to full and comprehensive duties?

Mr. O'Donoghue

I have no intention of avoiding Deputy Quinn's question, nor have I any reason to do so. However, we are here to discuss the question of Judge Ó Buachalla and his conduct.

Mr. Quinn

This is directly related to that.

Mr. O'Donoghue

The treatment of the two gardaí is clearly a matter, in the first instance, for the Garda Commissioner. I am aware the two gardaí were suspended from duty while being investigated but that the suspension was lifted after the Director of Public Prosecutions decided there should be no prosecution. I am also aware there was some concern about their proposed transfer, which has not gone ahead. However, I am advised there are legal proceedings on this matter which may be outstanding. In those circumstances, I am not in a position to comment on the matter further.

I sought reports, as the House will be aware, on the question of the licence from the Garda Commissioner. I also sought a report in connection with this matter from the chief executive of the Courts Service and I asked the President of the District Court about it. It has been decided, as we all know, to transfer the matter to a High Court judge. Part of the terms of reference for the High Court judge will be the whole issue of the Garda Síochána.

All files, including my file and the files in other offices, will be available to the High Court judge. Everything will be upfront. There is no problem.

Mr. U. Burke

Will the Minister confirm that the main concern of the Nevin family, which I related to him when I met him, was their inability, either by themselves or through their legal agents, to find out how or where the transfer of the licence took place? He was aware of that from the time I spoke to him. Was he aware of it prior to that or did he become aware of it through correspondence with the Nevin family?

Mr. O'Donoghue

The replies issued to the Nevin family after some facts had been assembled in regard to what happened with the licence. I tried to ensure we were as helpful as possible to the Nevin family in that respect. I cannot give Deputy Burke times and dates in relation to the matter. However, I recall having a chat with him on the matter. I could not relate what precisely we discussed that day but I remember the Deputy's concern in regard to it.

We set out the facts, as we understood them, in a letter in an attempt to be as helpful as we possibly could. To be fair, there may be a misunderstanding on the part of the Nevin family about my role in regard to the issuance of licences and so on. I tried to be as helpful as I possibly could within the constraints in which I had to operate. That was clearly of tremendous importance. I regret we could not be of more help. However, in my opinion, to have launched investigations and so on would have been prejudicial to the trial itself.

Mr. Gormley

The Minister spoke in his opening statement about political gamesmanship by the Opposition. Is he suggesting the Opposition is deliberately stirring this because Judge Ó Buachalla was appointed by Fianna Fáil and that had he been appointed by another party it would not be such an issue?

Mr. O'Donoghue

No, I am not suggesting that. However, I am stating categorically that I did not attempt to mislead the House or to conceal information from it, nor would I bother attempting to do so. I have been a Member of this House for 13 years and this is the first time I was accused of that. I do not understand where the charges are coming from because they just do not stand up.

Mr. Higgins

(Mayo): We are talking here about the integrity of the courts. A judge of the courts is now the subject of four inquiries, one by the Garda Commissioner, one by the Courts Service, one by the President of the District Court and now an overarching investigation by a High Court judge. Does the Minister not accept that where there is a question mark and a major shadow, as there is here, Judge Ó Buachalla would be doing a service to the judicial process, and public confidence in it, by standing aside in the short-term until the matter is resolved, without any prejudice? In regard to the transfer of a licence in a situation such as this from a dual licence to a sole licensee, which provisions of which Act should apply?

Mr. Quinn

Does the Minister believe that, in the interests of clarity and transparency, Mr. Justice Murphy should conduct his inquiry in public?

Mr. O'Donoghue

In reply to the question from Deputy Quinn, it is entirely at the discretion of the High Court or Supreme Court judge to decide whether he will hold the matter in public or private.

Mr. Quinn

That is clear, but what is the Minister's opinion?

Mr. O'Donoghue

I am anxious for all the facts in relation to this matter to come into the open at the earliest possible opportunity so that everybody can make a judgment on it. It is of fundamental importance to the good name of our democracy and its smooth running for people to have confidence in the judicial system, which I believe they have. However, there are question marks in relation to this matter which need to be resolved as speedily and openly as possible. As I said, however, that is a matter for the High Court judge.

In regard to Deputy Higgins's question on whether Judge Ó Buachalla should step aside in the meantime, I would not enter into that arena. I stated from the outset in relation to this matter that natural justice must be observed, we must have fair procedures and people must be given the opportunity to reply. Anything less would amount to a kind of star chamber or kangaroo court, which would not be acceptable and would be the very antithesis of what we are trying to achieve here.

There are not four inquiries. The situation is that Mr. Justice Murphy will take over the inquiry and will become the investigating judge. All other inquiries which had commenced will cease and, in so far as they were completed, will be furnished to the High Court judge.

Mr. Timmins

Will the Minister clarify if the barrister and solicitor involved in the case have been interviewed? Will he clarify if the document initiated by Inspector Finn was supposed to have reached his Department but never did? If so, what steps has he taken to examine what happened there?

Mr. Rabbitte

The Minister said the purpose of his communication to the Nevin family was to be helpful. Is it not the case that the average lay person believes that when the Minister wrote to the Nevin family saying everything was proper, it was manifestly the case that everything was not proper? How was that being helpful to the Nevin family?

Mr. O'Donoghue

If Deputy Rabbitte can find in the correspondence which I had with the Nevin family anywhere where I said it was proper,—

Mr. Rabbitte

Deputy O'Donoghue is the head of the Department.

Mr. O'Donoghue

It would be clear to me that it is a figment of his imagination. At no point did I tell the Nevin family that the procedure was proper. I outlined in detail the facts of the case as I understood them to be. Perhaps I would have been better off adopting the traditional line and stating that they would be better off asking somebody else. I did not do that; I tried to be helpful and I have no regrets about that. I outlined the facts of the case. The situation was as I outlined it and I cannot put it beyond that.

With regard to the issue of the barristers and the solicitors being interviewed and the issue of Inspector Finn, the position is that it would obviously be within the remit of the High Court judge to question all individuals involved in this particular matter. That is not something which would have been in the remit of any of the original inquirers.

I had hoped that it would be possible to have a quick definitive inquiry from each of the people concerned, the chief executive of the Courts Service, the Garda Commissioner and the President of the District Court. Unfortunately, it transpired that this would not be the case. In any event, the probability is that there would have been conflict as between at least some of the reports or at least as between some of the people making contributions. In those circumstances, I might have ended up having to transfer the matter to a High Court judge anyway pursuant to the section of the 1946 Act. In those circumstances and to short-circuit the possibility of there being a long delay, I decided that the matter should now be transferred to a High Court judge. I did so also because he would have far greater powers than anybody else.