Private Members' Business. - Establishment of Tribunal of Inquiry: Motion (Resumed). – Dáil Éireann (28th Dáil) – Wednesday, 21 Nov 2001

Private Members' Business. - Establishment of Tribunal of Inquiry: Motion (Resumed).

The following motion was moved by Deputy Shatter on Tuesday, 20 November 2001:

That Dáil Éireann:

–having regard to allegations of misconduct claimed to have been committed by members of the Garda Síochána in County Donegal, the subject of parliamentary questions and a reply thereto by the Minister for Justice, Equality and Law Reform on 13 November 2001;

–acknowledging widespread public concern about the matter and being strongly of the view that it is essential for the reputation of the force that any allegations of wrongdoing by its members are investigated thoroughly and that, if such allegations are found to be well-founded, appropriate disciplinary or criminal proceedings are initiated;

–wanting to see the truth of this matter determined and public confidence in the Garda Síochána, in so far as it has been adversely affected, restored;

–being of opinion that, in this case, the public interest in a full, public and impartial ventilation and determination of the facts, and a consideration of the issues of public policy arising therefrom, outweighs in importance the customary need to ensure pending or anticipated criminal proceedings are not put at unnecessary risk of frustration;

hereby resolves as follows:

(1) that it is expedient that a tribunal be established under the Tribunals of Inquiry (Evidence) Acts, 1921 to 1998 (‘the Acts'), to inquire urgently into and report to the Clerk of Dáil Éireann and make such find ings and recommendations as it sees fit, in relation to the following definite matters of urgent public importance:

(a) the Garda investigation into the death of Mr. Richie Barron at Raphoe, County Donegal, in October 1996, including the arrest of several members of the McBrearty family and the alleged securing of a confession to murder from Mr. Frank McBrearty junior;

(b) the allegations of serious and concerted harassment and other improprieties made against members of the Garda Síochána by members of the McBrearty family, including the numerous prosecutions of family members, friends and employees;

(c) the Garda request made to the Minister for Justice, Equality and Law Reform on 10 October 1997 for an order to exhume the body of the late Richard Barron; the circumstances surrounding the subsequent request made on 16 October 1997 by a member of the Garda Síochána for an exhumation order to be put on hold until further notice and why the Minister did not then make such an order until 3 July 2001, and any inquiries made by or on behalf of the Minister for Justice, Equality and Law Reform into the reasons for what occurred in October 1997 and the Minister's failure to inform the Dáil of what occurred in October 1997 until 13 November 2001;

(d) allegations that certain gardaí in County Donegal were involved in ‘hoax' finds of bombmaking equipment;

(e) the subsequent investigations into the original Garda investigation arising from the death of Mr. Barron and into related matters including, in particular, the investigation carried out by Mr. Kevin Carty, Assistant Commissioner of the Garda Síochána, and the consequent reports furnished to the Commissioner of the Garda Síochána, the Minister for Justice, Equality and Law Reform and the Director of Public Prosecutions;

(f) the reasons why and the circumstances in which members of the Diver family were arrested and detained under section 29 of the Offences Against the State Act, 1939, and the connection between those events and the arson of the telecommunications installation adjacent to their home;

(g) the role of the State, the organs thereof and relevant public bodies and officials in relation to the matters referred to above, and

(h) such other matters as the tribunal reasonably considers it necessary to inquire into and report upon in order fully to understand the circumstances, considerations and motives relating to the matters aforesaid;

(2) that the tribunal should be requested in particular, in the light of its findings and conclusions, to make whatever broad recommendations it considers appropriate for securing and maintaining the independence and integrity of the Garda Síochána in the disinterested performance of its functions, while at the same time ensuring the accountability of its members within an administrative system of oversight that is impartial and effective and secures the public trust;

(3) that the tribunal should be requested, to the extent that it may do so consistent with the provisions of the Acts, to conduct its inquiries in the following manner:

(a) to carry out such preliminary investigations as it thinks fit using all the powers conferred on it under the Acts (including, where appropriate, the power to conduct its proceedings in private), in order to determine whether sufficient evidence exists in relation to any of the matters referred to above to warrant proceeding to a full public inquiry in relation to those matters;

(b) to inquire fully into all matters referred to above in relation to which such evidence may be found to exist, and to report to the Clerk of the Dáil thereupon;

(c) to direct the production into its custody of all relevant or potentially relevant evidence, including documentary evidence in the possession of public bodies, in order to ensure its preservation for the purposes of its inquiries;

(d) in relation to any matters where the tribunal finds that there is insufficient evidence to warrant proceeding to a full public inquiry, to report that fact to the Clerk of the Dáil and to report in such a manner as the tribunal thinks appropriate on the steps taken by the tribunal to determine what evidence, if any, existed, and

(e) to report on an interim basis, not later than three months from the date of establishment of the tribunal or the tenth day of any oral hearing, whichever shall first occur, to the Clerk of the Dáil on the following matters:

(i) the numbers of parties then represented before the tribunal;

(ii) the progress which has been made in the hearing and the work of the tribunal;

(iii) the likely duration (so far as that may be capable of being estimated at that time) of the tribunal proceedings; and

(iv) any other matters which the tribunal believes should be drawn to the attention of the Clerk of the Dáil at that stage (including any matter relating to the terms of reference);

(4) that the person or persons selected to conduct the inquiry should be informed that it is the desire of the House that:

(a) the inquiry should be completed in as economical a manner as possible and at the earliest date consistent with a fair examination of the matters referred to it;

(b) any costs incurred by reason of the failure of persons to co-operate fully and expeditiously with the inquiry, including by reason of

(i) the giving of false or misleading information to the tribunal,

(ii) the raising of an issue before the tribunal, whether by way of allegation, counter-allegation or defence to such an allegation, which is unfounded or irrelevant or is abandoned or not pursued by the party which raised the issue, or

(iii) any conduct in relation to the proceedings of the tribunal or in the course of appearance or representation before it that is unreasonably obstructive, prolix, dilatory or evasive or which otherwise results in the proceedings being needlessly prolonged or in unnecessary costs being incurred,

should, so far as is consistent with the interests of justice, be borne by those persons;

(c) the tribunal should authorise the representation before it by solicitor or counsel of persons claiming an interest in the matters the subject of its inquiry only where and to the extent necessary to protect the legal or constitutional rights of those persons and should both authorise and confine the participation of legal representatives in its public proceedings accordingly;

(d) the tribunal should negotiate arrangements with a television broadcaster in the State, on terms satisfactory to the tribunal, for the live broadcasting of the entirety of its public proceedings;

(5) that the Clerk of the Dáil should on receipt of any report from the tribunal arrange to have it laid before both Houses of the Oireachtas immediately thereafter.

Debate resumed on amendment No. 1:

To delete all words after "Dáil Éireann" and substitute the following:

–having regard to the allegations that members of the Garda Síochána in the Donegal division engaged in unethical and criminal behaviour;

–mindful of the ongoing investigation into the death of Mr. Richard Barron, and not wishing to prejudice it in any way;

–conscious of the fact that several civil and criminal proceedings dealing with aspects of this matter are before the courts and are, therefore,sub judice;

–accepting the view of the Minister for Justice, Equality and Law Reform that it is essential for the reputation of the Garda Síochána that any alleged wrongdoing by members are investigated thoroughly and that appropriate disciplinary or criminal proceedings should be initiated, where necessary;

–noting the action taken by the Garda Commissioner to have the truth of this matter determined and the steps already taken by him to have public confidence in the Garda, in so far as it has been adversely affected by the matter, restored;

–welcoming the measures already decided by the Government to create an independent inspectorate for the Garda Síochána and to improve arrangements for the making of complaints against the Garda Síochána;

–commends the decision of the Minister for Justice, Equality and Law Reform to appoint an eminent legal person to conduct an independent review of all the relevant papers and the progress on these investigations generally with a view to the Minister receiving expert independent advice as to whether there are measures that might now be taken to bring matters to finality sooner rather than later.

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

Mr. McGinley:

I wish to share time with Deputy Gormley.

An Leas-Cheann Comhairle:

Is that agreed? Agreed.

Mr. McGinley:

I know from speaking to individual gardaí that they are deeply concerned by the events and how the affair has developed in County Donegal. It is in their interests also that the air should be cleared. It is demoralising for the Garda and undermining its authority. Internal Garda investigations seem to be leading nowhere. A dark cloud has accumulated over the force, which seems to be unjustified and unfair. The Minister's strategy seems to be to do as little as possible. For the last five years he has presided over a deteriorating situation. The appointment of an eminent senior counsel with access to all the files will, in all probability, end up in a cul de sac, as previous investigations have done.

We, in County Donegal, have confidence in the Garda Síochána as a whole and want to see its confidence and authority restored. If there have been misdemeanours, or worse, it is in all our interests, including those of the Garda Síochána, that they should be exposed and any wrong-doing punished. No one is above the law.

As the only non-Government Deputy from County Donegal, I welcome the motion to establish a tribunal of inquiry into the McBrearty affair and related matters. The people of County Donegal are as concerned and anxious as I am to bring this episode to an early and satisfactory conclusion. All previous attempts have failed to achieve this objective. It is time to lance the boil before it becomes malignant.

The bereaved Barron family want to know how their father died. The McBrearty family, the McConnell family and the Diver family from Ardara want to know on what evidence they were wrongfully singled out for the harassment and intimidation to which they were subjected.

Ordinary rank and file gardaí in County Donegal want the matter brought to a satisfactory conclusion, and have their authority and morale restored. The people of County Donegal want an end to the uncertainty and confusion, and have their confidence in the Garda Síochána restored. Only a tribunal, as proposed in the motion, is capable of achieving this objective and I will certainly be supporting its establishment. I wish to compliment the spokespersons in my own party, Deputies Shatter and Jim Higgins, as well as those of the Labour Party and the Green Party.

Mr. Gormley:

The Green Party is proud to be a signatory to this motion, with the Labour Party and Fine Gael, which calls for a full tribunal of inquiry into the alleged misconduct of certain members of the Garda Síochána in County Donegal. The inquiry is imperative, not just for the sake of those alleging harassment and gross violation of their civil liberties, such as the McBrearty family, and the close relatives of Mr. Richie Barron, killed in Raphoe, County Donegal, in 1996, but also for the Garda Síochána. We must maintain public confidence in the police force, but this confidence has been eroded as a consequence of these events.

I have a high regard for the Garda Síochána. I know from my constituency work, as, I am sure, many Members of the House do, how hard, varied, demanding and invaluable its work is. The Garda Síochána has a high reputation, due in no small part to the fact that it is an unarmed force. It has served the country well. It has also served the wider international community, since 1989, as part of UN forces in a number of countries. Garda Sergeant Paul Reid gave his life when, as a member of UNPROFOR, he was killed in Sarajevo's so-called sniper's alley in 1995.

The first head of the Garda Síochána, Commissioner Michael Staines, argued that "the Garda Síochána will succeed, not by force of arms or numbers, but by their moral authority as servants of the people." That is exactly the reason the motion is before us today. The moral authority of the Garda Síochána has been undermined by events in County Donegal, and so has its reputation as "servants of the people." The allegations against the Garda Síochána are serious; they go to the heart of our democracy and Constitution.

The reputation and role of the Minister for Justice, Equality and Law Reform, however, is also under scrutiny. There has been, to say the least, a lack of urgency on his part and that of the Government on this issue.

Let us look both at the known facts and the allegations. We now know that Mr. Richie Barron was not murdered along a road in Raphoe, County Donegal, on 14 October 1996, but was the victim of a hit and run accident. This was not known until nearly five years later, this July, after his body had been finally exhumed. This raises a number of appalling questions and issues. It also points to a number of mistakes and inexcusable delays. It raises questions about the Garda Síochána and the Minister for Justice, Equality and Law Reform.

The original autopsy was obviously inadequate. Reports show that the accident scene was not properly preserved, and the assumption that gardaí were operating under, at the scene and thereafter – that this was a criminal assault – was clearly incorrect. At the heart of the need for a tribunal is the fact that a confession was allegedly made by Mr. Frank McBrearty junior, to a murder that was not, in fact, ever committed. This is a confession that Mr. Frank McBrearty says he never made and signed.

Linked to all this are allegations from the McBrearty family and staff at Mr. Frank McBrearty senior's licensed premises in Raphoe, of police intimidation, rough interrogations and general traumatic treatment, including over 150 summonses under the licensing, road traffic and Public Order Acts, being served over a six month period in 1997. All these summonses have now been withdrawn, but this has happened with no apology or explanation being given.

Then there is the mystery surrounding the exhumation order on the late Mr. Richie Barron. On 10 October 1997 the coroner in County Donegal asked the Minister for Justice, Equality and Law Reform for an exhumation of Mr. Barron's body. Within six days, however, the Garda Síochána told the Minister to put a hold on the application. It was not until four years later, on 10 July 2001, that the exhumation finally took place, showing that the injuries to Mr. Barron were consistent with a hit and run accident, not murder. Why was there such a delay? Why did the Garda Síochána ask for the body to be exhumed at the start of the week, change its mind by the end of the week, and convince the Minister for Justice, Equality and Law Reform to do nothing about this highly controversial case until a few months ago?

As Deputy Shatter pointed out in the House yesterday, why did it take until 13 November before the Minister for Justice, Equality and Law Reform revealed anything about these 1997 requests? Did he not question what was going on, or did he simply not investigate?

While there have been three internal Garda investigations, there has been no official report and no one has been charged with anything. We know from Magill magazine, not from the Minister, that one of the internal Garda reports found that 53 mistakes were committed by the Garda Síochána in the initial investigation. This is, to say the least, disquieting.

The Minister has now announced the appointment of Mr. Shane Murphy, an eminent senior counsel, to "examine all the relevant papers and the progress on these investigations generally with a view to his receiving expert independent advice as to whether there are any measures that might now be taken to bring matters to finality, sooner rather than later." Despite Mr. Murphy's undoubted abilities, this approach will not, and cannot, be fully satisfactory.

A tribunal is the proper route to clear up what has been an upsetting and unsettling course of events. For these matters to be adequately addressed there will be a need for all documentation held by the Garda Síochána on this issue, including the three internal investigations and the files held by the Director of Public Prosecutions, as well as the full co-operation of all sectors of the Garda Síochána.

I understand we may have two votes on this motion tonight. I am hoping Deputies Blaney and Gildea might have the courage of their convictions and support the motion.

Yesterday the Minister tried to traduce the reputation of the Green Party, saying that we had not learned from previous mistakes. He referred to a judgment delivered on 26 June 2000 by Mr. Justice Haugh and said that the Green Party had prejudiced the trial of certain people. He quoted Mr. Justice Haugh as saying:

For similar reasons I also believe that the leaflet captioned "Jail the Corrupt Politicians" has similar potential for real and substantial prejudice not only because of its contents but also the position and status of those announced as due to speak at the rally concerned.

While the Minister did not mention me by name, I was due to speak at that rally. I have to tell him, however, that we had nothing to do with the publication of any leaflet. We are aware of how easy it is to prejudice someone's trial. This needs to be examined because the way things are at present one could get a friend to ring up a radio station or talk to the press and say that a person should be jailed and the person concerned can then claim they cannot get a fair trial. There is something wrong about this and it needs to be examined. The Minister said that what we are saying here and what we are calling for could prejudice a trial. He should examine this. If a tribunal of inquiry is done correctly, it should not prejudice someone and and his or her trial. The families have given assurances they will stop all civil proceedings to facilitate such a tribunal of inquiry. A full tribunal, a sworn inquiry, is what is required to clear this matter up once and for all and restore the reputation of the Garda Síochána which has served us well.

Mr. Ardagh:

I wish to share my time with Deputies O'Kennedy, Collins and Gildea.

Acting Chairman (Ms McManus):

Is that agreed? Agreed.

Mr. Ardagh:

Before I laud the Minister for his approach to this affair I thank Deputies Shatter and Howlin for tabling the motion. It is right and proper that such matters of public interest are discussed in the Dáil. This debate will help the Barron family, the McBrearty family, the McConnell family and all the other families concerned. It will help the people of County Donegal who want, as Deputy McGinley said, to get on with their business and also help to restore confidence in members of the Garda, particularly those who are innocent and act with integrity in County Donegal. Deputy Shatter stated last night that the members of the force undertake their duty with great dedication. Deputy Howlin said we are exceptionally fortunate to have an unarmed police force, such as the Garda Síochána, to deal with paramilitary and other criminal groups and that it has done a splendid job. There are almost 12,000 members – perhaps there are 1,000 more than Deputy Howlin said last night – of the Garda Síochána. However, only a minuscule number are involved in practices we do not and cannot condone.

The functions of parliamentarians are to legislate, represent and, most importantly, oversee and scrutinise the actions of the Executive and its bosses, the Ministers. It is right and proper that this is done by Deputies in the House. Both Deputies Howlin and Shatter excel in this role and it would be a great loss to the country if they did not remain in that position in opposition to ensure such scrutiny continues in the years ahead. Such scrutiny is done through debates, questions, on Private Members' Business and through the media. I saw Deputy Shatter on RTE news this evening and he not only mentioned the McBrearty affair, but another matter which will come into the public domain in the next 24 hours. Scrutiny is also done through committees of the House, such as those involved in investigating the mini-CTC system and the Abbeylara affair.

The establishment of a tribunal is a matter which should be done as a last resort and only when all other avenues have been exhausted. Those avenues have not yet been exhausted. There is a belief that a tribunal is a panacea for all things. Last night Deputy Rabbitte suggested the beef tribunal was a whitewash. He also suggested that the 1921 Act under which tribunals operate is antiquated, out of date and difficult to operate under. Before a tribunal is established and before it can be successful it is necessary to have a preliminary investigation which sets out the facts of the matter in a manner which facilitates the taking of evidence in an effective and efficient manner, just as the Comptroller and Auditor General did in the DIRT inquiry. The motion suggests that the tribunal should be established and then an investigation should be carried out in private. There is an incongruity in this. The Minister has appointed the eminent legal person, Shane Murphy, who will have access to all the Garda and departmental documentation.

Another important matter is that of constitutional rights and the question of whether those charged with criminal offences have a right to defend themselves and have cases against them heard at the earliest possible opportunity. It is the case that successive Governments have allowed the criminal process to take its course. It would be a dangerous precedent if a tribunal was put in place at this early stage. There are problems in relation to gardaí and complaints against them. I congratulate the Minister for publishing the new arrangements which will govern future complaints against the Garda Síochána. I look forward to the establishment of the independent inspectorate. The Minister is adopting the correct approach in this matter.

Mr. O'Kennedy:

The issues we are addressing this evening are of the utmost importance for the McBrearty family, which no one can gainsay, the family of the late Richie Barron, the effective administration of justice and upholding and vindicating the rule of law, one of the primary obligations we, as legislators, have in this area. We should be mindful in any recommendations or conclusions we reach here that we operate under a clearly defined constitutional position where the separation of powers is absolutely established in our Constitution, part of which is the independence of the Judiciary and the judicial function which involves the examination on their criminal sanction of matters of criminal law or the examination on their arbitration or hearing of both sides in matters of civil law. Our constitutional role, as legislators, however impatient we might be from time to time with the instances, cases or judgments of some judges, is not to set ourselves up individually or collectively as being equipped, qualified or in a special capacity to reach the conclusions on how others should do their business.

I speak as someone who recently celebrated 40 years as a member of the Bar and almost 37 years as a Member of the Oireachtas. I have some experience in this area, both as a Member of the Oireachtas and as a member of the Bar. For that reason I recall the precedents we followed here. I was a Member of the House in 1974 when the then Government, which I applauded then and which I applaud now – we were in opposition at the time – introduced the legislation establishing the independent function of the Director of Public Prosecutions. The Prosecution of Offences Act, 1974, was enlightened legislation. It deserved the support it received in the House and has been vindicated in experience since. It has meant, for example, that those of us who might be approached from time to time, although I always resist any such approaches, can point to the fact that under the legislation the Director of Public Prosecutions is required to be independent in the discharge of his or her duties.

Furthermore, section 6 of the Act states that it shall be unlawful to communicate with the Attorney General or an officer of the Attorney General or, in this instance, the Director of Public Prosecutions or an officer of the director acting in his official capacity for the purpose of influencing making of a decision to expedite, withdraw or not to initiate criminal proceedings. That puts it all in context. It is the sole independent function of the Director of Public Prosecutions and unlawful for anyone of us to try to change this. If we were to adopt this motion collectively, I will not say the House collectively would be guilty of a criminal offence – I appreciate the thinking of those who submitted the motion – but at the same time we would be sailing very close to repudiating that which was established when the Opposition was in government and on which I commend it. I have always supported that independence.

On the face of it, there is justifiable cause for concern about the events surrounding the death of Richard Barron and the focus on the McBrearty family. Nobody is denying this. To that extent I empathise with the Opposition. Having said that, it is important to realise that the best guarantee, the best protection, is to use the law and its procedures to vindicate and protect the good name of families such as the McBreartys and ensure if there are gardaí who actually breached the standards required of them by all of us and the public, they are made amenable to the law and the statutory disciplinary sanctions in the Garda disciplinary code.

Mr. Higgins

(Mayo): But they have not worked.

Mr. O'Kennedy:

The Deputy says they have not worked. In that case he had better tell the Director of Public Prosecutions. If we are to rely on the wisdom, judgment and capacity of the Deputy to reach a conclusion, as distinct from the functions established under law by the House, then I am afraid we will often be chasing our tail. We would do the same if we just relied on my judgment. I am not claiming I have better judgment than anybody else.

The Minister has acknowleged, quite properly in my view, just as a matter of personal judgment, that there is cause for some considerable concern and for this reason suggested that he is proposing to the House that perhaps a preliminary inquiry be established by him under a colleague of mine at the Bar – it does not matter who he is, another colleague is a senior counsel. That is a practical suggestion. If we want to introduce what has been suggested this evening, for which I have a certain degree of support, particularly in respect of what the McBrearty family has gone through, we ignore the fact that the Director of Public Prosecutions has already initiated prosecutions against six people, including, as far as I know, a Garda sergeant. Do we want to frustrate these? Do we not know this from our experience of tribunals? I was the one who established the first tribunal.

There is another independent function in our Constitution, that of the Attorney General when advising on matters of law. The Office of the Attorney General has clearly stated it is not appropriate to establish a judicial sworn inquiry at this time. I am simply saying for all these reasons it is appropriate that anything we do now will not undermine respect for the rule of law.

Mr. Collins:

I very much support what the Minister, Deputy O'Donoghue, said on this Private Members' motion last night. He enunciated in unequivocal terms his views and those of the Government on the matters raised by the motion. I take this opportunity to say we must all uphold the law at every opportunity and where illegal wrongdoing takes place, it must be rooted out with vigour and determination.

We are all concerned about the situation in County Donegal and want to see the facts of the matter established. We want to ensure those who have been involved in criminal activities are brought to justice. It is an absolute imperative that any alleged wrongdoing is investigated thoroughly and that the necessary and appropriate proceedings are taken, but equally due process must be respected in accordance with the laws of the State. As the Minister said last evening: "I know some are frustrated with what they see as the delay in having the truth of this matter established but let us be clear about one thing, we intervene with the criminal process at our peril."

There are no shortcuts in the pursuit of justice, no quick fixes in bringing the guilty to book. We cannot disregard legal principle for political expediency. I want to see the truth determined, but it must be determined in accordance with the law. The integrity of criminal proceedings is the sole responsibility of the Director of Public Prosecutions. We should tread very carefully in this Parliament in order to ensure we do not fall into the domain of work that is the responsibility of the Director of Public Prosecutions.

Criminal trials have been halted before because of political literature distributed by political parties. There are clear divisions between the roles of the Judiciary, the Legislature and the Government. We must respect the lines of responsibility across these organs of State. It is important for all of us that this is the case. I want to see justice in these matters and nothing short of it. I strongly believe that this is the overwhelming view of Members. That is only right and proper. Where differences lie in the House on this matter, they relate to how best we can approach the issue now.

I very much support the views expressed by the Minister when he rightly pointed out that the two most successful inquiries in the State were superseded by an investigation by an eminent and qualified person. The work of the McCracken tribunal was preceded by an investigation by Gerard Buchanan. The work of the Finlay tribunal was preceded by an investigation by Judge Mir iam Hederman-O'Brien. Let us be clear about one thing. We do not want to prejudice possible future prosecutions that may arise out of the events in County Donegal.

It is the consistent view of the Government that where there is wrongdoing we must allow the criminal process to take its course and, on the civil side, allow the normal civil law process to strike a balance between the rights of individuals and State bodies. There have already been criminal prosecutions in County Donegal concerning the issues before us and, according to the Minister, the Director of Public Prosecutions is presently considering these cases. The Minister has also said that if at the end of the normal civil and criminal processes a level of public concern still remains about this particular case, there can be a public inquiry.

On a related matter, the Government has published new arrangements which will govern future complaints against the Garda Síochána. It has put in place measures for the establishment of a new Garda inspectorate which will have the capacity to examine every aspect of Garda operations from the point of view of best policing practice. It will be wholly independent in the carrying out of its operations. It will oversee arrangements for the handling of complaints independent of any other body, including the Garda Síochána, which has a high reputation. Gardaí are highly respected for the professionalism with which they carry out their duties. However, wherever there is wrongdoing on the part of individual gardaí, appropriate structures must be put in place to deal with it. I am fully confident that the Government is dealing with all these key pertinent issues by appointing an independent eminent legal person to conduct an independent review of all the relevant papers involved.

Mr. Gildea:

I thank the Chair for giving me the opportunity to speak on the motion. I find the vast majority of members of the Garda Síochána to be professional, decent people who carry out a difficult job in society. They are the thin blue line who stand between society and the criminals. I acknowledge that their task is not only difficult, but in many ways thankless. However, it goes without saying that if there are some among them who do not come up to standard, it is necessary that the offending members should be weeded out and subjected to the full rigours of the law in the same way as any other law breakers.

The role of the Garda Síochána in the McBrearty case and other similar and related cases in County Donegal is a sad episode. It has been an awful experience, not only for the McBrearty family, but for a number of other families, including the Diver family in Ardara who were victims. Let us make no mistake about it, victims they are. They were the victims of Garda harassment. While the McBrearty case did not occur in my constituency, I have a large amount of knowledge and information on it. I have very intimate and personal knowledge of other incidents in my con stituency of Donegal South West, including Garda treatment of the Diver family and other related matters, especially the burning of a portacabin, the property of Cable Management Ireland, the company which bought the MMDS franchise in County Donegal from the Minister with responsibility for communications in a previous Government, Mr. Ray Burke.

I would like to expand on the role of the Minister for Justice in the rainbow coalition on all these matters pertaining to Garda activities in south west Donegal from 13 December 1995 up to its dissolution in 1997. It was during Deputy Owen's term of office that a force of up to 100 gardaí was amassed for use against the local law abiding rural population of the Ardara-Glenties area. At a later date, almost one year later, the burning of the portacabin and the finding of an explosive device at the site of the proposed MMDS transmission site led to the controversial arrest, detention and interrogation of the Diver family.

On that point, the role of the then Minister for Justice, Deputy Owen, in these matters should be examined. The Garda Síochána in County Donegal was subjected to unacceptable pressure by her.

Mr. Rabbitte:

On a point of order—

Mr. Gildea:

She was not only using her powers—

Deputy Owen was not only using her powers as Minister for Justice to use the Garda, but in actual fact abusing them in dealing with the Garda in County Donegal. I request that she be fully investigated, because as the enthusiastic and willing handmaiden of Cable Management Ireland—

Mr. Higgins

(Mayo): Who wrote that for the Deputy?

Mr. Gildea:

—she had received financial remuneration. Therefore, it is not only the Garda which should be investigated, but also its political masters during 1996 and 1997. I am seeking a criminal investigation that will result in prosecution—

(Interruptions.)

Acting Chairman:

Please allow the Deputy to speak.

I will suspend the sitting for ten minutes.

Sitting suspended at 7.40 p.m. and resumed at 7.50 p.m.

Mr. Shatter:

In the course of his contribution this evening Deputy Gildea made outrageous and scandalous charges against Deputy Owen of illegal and corrupt practices which are totally untrue and completely outside any terms in which a Member of this House should speak. We request that Deputy Gildea be required to withdraw the charges he made which are simply designed to cover up his failure to seek to support the motion to enable a tribunal of inquiry to take place. His comments are unacceptable and contrary to the rules of this House.

An Ceann Comhairle:

The House had to be suspended due to disorder.

Mr. Howlin:

No, it did not.

Mr. Shatter:

No, we asked for you, Sir, in the context of comments made by Deputy Gildea.

Mr. Howlin:

Accusations of criminality.

An Ceann Comhairle:

I cannot rule on something I did not hear.

(Interruptions.)

An Ceann Comhairle:

I cannot. This is ridiculous.

(Interruptions.)

Mr. Shatter:

A charge has been levelled against a Member of my party, the nature of which, were it any other Member of the House, you would require that it be withdrawn or the Member leave the House. We insist that we have the same protection of the Chair as other Members in circumstances in which a Deputy wilfully abuses his privileges as a Member of this House.

An Ceann Comhairle:

When the allegations were made, that was the time to call for the charge to be withdrawn.

Mr. Shatter:

It was. It was raised immediately on a point of order and you were sent for.

(Interruptions.)

Will he also say who wrote his speech?

Mr. Gildea:

I was in the process of delivering a speech on the motion. I was reading from this text. May I proceed with the remainder of my speech?

An Ceann Comhairle:

The Deputy's time is exhausted.

Mr. J. O'Keeffe:

Who wrote the Deputy's speech?

An Ceann Comhairle:

Order, please. The House is entitled to pass a Motion of Censure on Deputy Gildea.

A Deputy:

The Minister is agreeable.

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

I agree.

An Ceann Comhairle:

There is no objection. Is that agreed? Agreed.

(Mayo): What we are debating this evening is what we associate with the dreaded secret police in former communist East Germany. It is the kind of case that we have associated with the Russian KGB. It is certainly not what one would expect to find in the quiet hills of County Donegal. We are dealing with one of the most sinister, ruthless and malicious cases of Garda corruption in the history of the State.

It was a trumped up murder case based on a total fabrication by gardaí in County Donegal using false and discredited witnesses, some with criminal convictions, and other former Garda informers. Had the conspiracy not been exposed, an innocent family, the McBrearty family of Raphoe, would be behind prison bars this evening serving long sentences for a crime of which they are totally innocent.

The net outcome is that the McBreartys and their family have been destroyed emotionally, physically and commercially. They have endured humiliation and the embarrassment of false arrest and imprisonment. They are now left with the impossible task of trying to pick up the pieces and put their lives back together again.

Instead of trying to vindicate their good name, restore their character and make recompense, they continue to be disgracefully treated by the Government. Having been acquitted of any taint of association with the death of the late Mr. Richie Barron, the McBrearty family are still awaiting an apology from the Minister for Justice, Equality and Law Reform, Deputy O'Donoghue, for the damage inflicted on them. The Minister owes them an apology. He should avail of this opportunity. He also owes an apology to the widow and family of the late Richie Barron.

By changing the focus and direction of the inquiry from a hit and run accident to a murder inquiry, the Garda introduced a hugely upsetting and traumatic dimension into the lives of the already grieving family of the deceased. The Barron family were led to believe by the Garda that their loved one had been murdered. For three years they repeatedly asked themselves the reason anybody would want to deliberately kill their father and husband. Year after year, they publicly remembered the anniversary of his death by inserting a long list of memorial notices in the local newspapers: "In loving memory of my dear husband who was viciously beaten and left to die on the 14th October 1996"; "Cherished memories of a special dad brutally beaten and left to die"; "In loving memory of a dear father who was brutally murdered on the 14th October 1996"; "In sad and loving memory of my brother Richard, who was murdered on the 14th October 1996 R.I.P."

All the while, the gardaí involved knew well that this was no murder case. Mr. Barron died from injuries consistent with a road traffic accident. This was the conclusive finding of the post mortem examination. This was the conclusive finding – we are led to believe – of a further post mortem carried out by the State pathologist, Dr. John Harbison, last July.

The Minister owes an apology to the Barron family for allowing them to continue in the belief that Mr. Barron had been murdered. He owes them an apology for presiding over a Garda force which, five years and one month later, has still not established who killed the head of the Barron household. He owes the McBreartys and the public an apology for presiding over a total charade and cover-up, because that is what is at issue. He is singularly responsible for this farce. He repeatedly said that if he was not satisfied with the manner in which the Carty inquiry, and the other Garda inquiries, were conducted, he would have no hesitation in establishing an independent inquiry. We are still waiting for it.

We demand that independent inquiry this evening. The Minister has done nothing. We have had the initial road traffic accident investigation. We had the accident investigation, followed by another investigation – a murder inquiry. We have had the Carty inquiry, the results of which are still locked somewhere in the bowels of the Office of the Director of Public Prosecutions. We have had an inquiry into the treatment of Garda Tina Fowley. We have had the Garda Complaints Board investigation. We have had the investigation by Assistant Commissioner Fachtna Murphy and Superintendent Pat Brehony in respect of the information brought to the Minister's attention privately and personally by Deputy Brendan Howlin and me. All the inquiries and investigations have not yet arrived at any definitive outcome. From a Minister for Justice, Equality and Law Reform whose flag of convenience was zero tolerance, all we have had is zero interest, zero action and zero results, but what could one expect from a bombaster?

I have before me a copy of the false confession of Frank McBrearty Junior. On the bottom of page 3 is Frank McBrearty's forged signature. After all the inquiries, the Minister has failed to establish who forged it.

I also have a copy of a statement made by a female Garda officer who was in the precincts of Letterkenny Garda station while the McBrearty family were being abused in custody. In her statement she states that, on 4 December 1999, she was on duty at Letterkenny Garda station. She was detailed for duty in the incident room. There were a number of persons in custody in connection with the murder of Richard Barron, including two of the main suspects at the time, Mark McConnell and Frank McBrearty junior, who are in the Public Gallery tonight. During the course of the afternoon the Garda officer was present in the conference room. Seated on the left hand side at the lower end of the room were other gardaí. A senior Garda officer, whom she names, was seated at the conference table facing the door, almost adjacent to it. He was writing on an official half sheet. The female Garda officer had cause to retrieve some papers from a nearby table and, in so doing, passed behind the officer. He turned and showed her the half sheet on which he had been writing. It was a sepia coloured ruled half sheet. There was writing on this sheet of paper, covering approximately one third of the page. There was the name of Frank McBrearty written in longhand at the end of this writing. She goes on to say that in front of the officer was a black and white photocopy of a manuscript signature of the name of Frank McBrearty. From her recollection, this signature was a photocopy of form C8. The Garda officer showed her the half sheet and asked her was "that a good likeness". She goes on to say: "I took this to mean were both signatures alike. I thought it was a practical joke. I started laughing and so did he". She returned to her seat and the officer left the room with the papers on which he had been working. The bangharda took this to be a ruse and thought no more about it until recently when concerns about the veracity of the statement of admission obtained had been expressed in the media.

The treatment of the McBrearty family in custody was appalling. Frank McBrearty senior was arrested at 7.55 p.m. on Friday, 5 December 1996 from his home in Tullyrapp, Raphoe. There were at least 30 gardaí present. He was arrested under section 30 of the Offences Against the State Act. He was placed in a patrol car which was followed by detectives in other cars and taken to Letterkenny Garda station. During questioning he was repeatedly abused. His GP was sent for and arrived and having examined Mr. McBrearty indicated that his blood pressure was very high and advised the gardaí that he was in danger of having a heart attack or a stroke and that he should be taken to hospital. He was taken to Letterkenny General Hospital and while still in Garda custody, he was told he must watch what he said. He was then transferred by ambulance to Blanchardstown Hospital escorted by two gardaí. While in hospital he was watched by the gardaí 24 hours a day. His family was not allowed to visit him. After being transferred back to Letterkenny Hospital, Dr. Brian Callaghan, a consultant, wrote a letter dated 11 December 1996 indicating that while he could be discharged from hospital he should not under any circumstances be interrogated as this would lead to further illness.

Mr. McBrearty was released from hospital on Thursday, 12 December 1996 and taken again by gardaí to Letterkenny Garda station at 4.35 p.m. Various accusations and allegations were thrown at him regarding the death of Richie Barron. He was placed in cell No. 4 at 9.10 p.m. At 9.27 p.m. he was taken from the cell and interrogated until 10.15 p.m. He was kept in Garda custody overnight. Mr. McBrearty at this stage was complaining of chest pains. At 8.35 a.m. on 13 December he was again interrogated and accused of bribing people. He subsequently suffered a black out. However, the interrogation continued in spite of his dizziness and chest pains. Dr. McColgan arrived and recommended that Mr. McBrearty be taken to hospital for high blood pressure and for an ECG examination. He was again taken to Letterkenny hospital with a Garda presence at all times outside his room. He was transferred to Beaumont Hospital on 17 December again under constant Garda surveillance. Finally, he was released for Christmas. There then began a sustained campaign of Garda harassment of the McBrearty premises. More than 160 charges were brought against the family until these were finally thrown out by the DPP.

Frank McBrearty senior, Frank McBrearty junior, Mark McConnell and his wife Roisín McConnell were all disgracefully treated while in Garda custody. Roisín McConnell is a nervous wreck today. She has had to receive psychiatric treatment and may never recover from the trauma inflicted on her. Cock-ups and mistakes can happen in any walk of life but we are not dealing here with a monumental cock-up. What we are dealing with here is a deliberate miscarriage of justice. What we are dealing with here is a calculated decision taken within the Garda by senior gardaí to finger and frame the McBrearty family. Five years later the Carty inquiry or any of the other inquiries or investigations have failed to establish the facts. They failed to establish who made the decision or the basis for the decision to abandon the hit and run investigation and to change the focus to a murder inquiry.

The medical evidence is quite clear. Richie Barron died from injuries which were consistent with having been involved in a road traffic accident. They failed to establish who was driving the car. In his affidavit sworn on 21 April 1997 Chief Superintendent Denis Fitzpatrick states: "while the indications were that Mr. Barron died in a hit and run accident his injuries were consistent with death having been caused by ‘other unlawful means'." The inquiries have failed to establish how Chief Superintendent Fitzpatrick arrived at this grossly misleading conclusion. They have failed to establish where the medical evidence was for giving any kind of substance, support or credence to such a statement made under oath.

The crucial Garda conferences which brought about the change of direction were held on 2 and 3 December 1996 at Letterkenny Garda station. At the 2 December conference a decision was made to contact Garda Headquarters in Dublin and seek the assistance of the Cobra Unit. At the 3 December conference all members of the Cobra Unit were handed copies of alleged false statements made by persons who have now been charged and are before the courts. The Cobra Unit was told to base its interviews by sticking strictly to the alleged facts in the alleged fabricated statements of these persons who have now been charged. On the following day, 4 December, Frank McBrearty junior and his cousin Mark McConnell were arrested. On the following day, 5 December, Frank McBrearty senior was arrested and subjected to the maltreatment at the hands of gardaí that I have already outlined.

The inquiries have failed to establish why the McBrearty family was selected as the main suspects for the murder inquiry. There was not a scintilla of evidence either forensic or circumstantial against them. The family was well respected. They were good citizens – good members of the community. Frank McBrearty senior had been nominated by the people of Raphoe as mayor of Raphoe. They were successful business people having come home from Scotland and ploughed their hard earned money into developing their business. Not only were they never in trouble with the law but they would be seen as Garda-friendly people. However, for some reason yet to be established, they were hand-picked and criminalised.

The inquiries have failed to establish why the gardaí decided to bring a specially trained garda from Dublin to install bugging equipment in the GRA room on the ground floor of Letterkenny Garda station to bug conversations between the McBrearty solicitors and their clients.

Superintendent Kevin Lennon sought an exhumation order on the body of Mr. Barron in October 1997. This was granted by the Minister, Deputy O'Donoghue. Why was that order not proceeded with? The inquiries have failed to establish who made the decision to block the exhumation which would have confirmed four years ago what Dr. Harbison established four months ago.

The reality is that the plethora of inquiries have failed to establish the truth. They are Garda conducted inquiries carried out by the gardaí into alleged misconduct of fellow gardaí. They are secret inquiries conducted behind closed doors. Evidence is not taken under oath. All they have done is fuel frustration, confusion, doubt and cynicism. Last night the Minister for Justice, Equality and Law Reform reiterated his decision to institute yet another secret inquiry where files will be examined by a lawyer behind closed doors yet again. We must establish the truth and that can only be done in an open, transparent public forum. It is patently obvious that five years and one month after the death of Mr. Barron and despite numerous Garda inquires, we are still nowhere near the truth. The only way the truth can be established is by establishing a tribunal of inquiry. The gesture of the McBrearty legal team to agree to park the civil proceedings to enable such a tribunal to be established clears any obstacle to such a tribunal.

What is quite clear is that a policy decision has been taken to delay, long-finger and to stop the truth coming out until after the next general election. That is extremely serious for the McBrearty, Barron and Divers families who have been subjected to harassment and wrongful and damaging accusations relating to the planting of explosives on the MMDS mast at Ardara in County Donegal. It is a serious matter also for the Gallagher family from St. Johnstown, the integrity of the criminal justice system and the Garda. The damage to the reputation of the Garda by the mishandling of this affair is enormous. The damage to public confidence in the Garda is enormous. This is not a local Donegal issue. This is a national issue that goes to the very core of the public's faith in the police force established to protect the citizens of this land. Unless the truth is established, unless all the gardaí responsible for the perversion of justice and for the gross abuse of their positions are brought to book and are dealt with in public, a lasting lingering cloud will hang over the force for many days to come.

I now want to put to Deputies Blaney and Gildea, in the bluntest possible terms, what they are facing tonight. These two so-called Independent Deputies from Donegal will be crucial in determining the final outcome of this debate. They should reflect long and hard before they walk up these steps. This is an acid test of their independence. This is the moment of truth as to whether they have any independence of mind or judgment.

Mr. B. Hayes:

Hear, hear.

Mr. Higgins

(Mayo): This is the final determination of whether Deputy Gildea and his colleague are their own men or are simply two mud-guards on the Fianna Fáil juggernaut. I hope Deputy Blaney is watching. His primary responsibility is to his constituency and the electorate of Donegal North East who elected him to this House. Will he abandon tonight, two families from his constituency who have been so badly treated by this Minister for Justice, Equality and Law Reform and the Government? If Deputy Blaney votes with the Government tonight it proves beyond “yea” or “nay” that he is an ex-officio member of Fianna Fáil and should do the decent thing; go back to where he belongs and join Fianna Fáil.

To Deputy Gildea, I say, rhetoric is fine but rhetoric will not suffice tonight. It simply will not wash. Deputy Gildea should recall the issue which parachuted him into the Dáil four years ago – the television deflector issue.

Mr. Rabbitte:

He is still deflecting.

Mr. Higgins

(Mayo): I am sure Deputy Gildea will recall that among his strongest supporters were the Divers family from Ardara – they are in the gallery tonight. As a result of their unstinting support for Deputy Gildea, they, like the McBrearty's suffered considerably at the hands of the Garda. The Divers family stood by him loyally in his hour of need. Is he now prepared here in this House tonight to abandon the Divers family in their hour of need? Deputy Gildea should ask himself that question. Will he betray them, his constituents, his friends and local supporters? If he does, upon his own head be it.

Mr. G. Reynolds:

I have spoken many times on Private Members' motions over the past 15 years. This issue is the most serious and has the greatest consequences for our country. I was brought up to have and show respect for all institutions of the State. It is necessary that our people have confidence in our police force and hold it in the highest esteem. The Garda Síochána has a major role throughout the history of this State in the preservation of our constitutional democracy. It is necessary that it continues to preserve that position and play a vital role in our society.

The McBrearty case has been festering like a bad sore for the past five years. The evidence and innuendo spoken of and written about in this case has caused many people to question the role of the Minister and the Garda. While there have been numerous investigations into the death of Richard Barron, the Minister or the Garda have not been cleared of wrong-doing. What is required is a judicial public inquiry so that the police and general public can deal once and for all with the alleged wrong-doing of the Garda or the State.

The kernel of this issue is that some members of the Garda Síochána framed a man for murder, a murder that did not take place. For the Minister for Justice, Equality and Law Reform to allow something as serious as this to drag on for more than four years without resolution is unbelievable. It goes back to GUBU. If I were in the Minister's position I would, at least, want my name cleared. As Minister for Justice, Equality and Law Reform I would not preside over a cover-up.

I now wish to ask the Minister a number of questions to which I hope he will take the opportunity to reply. Can he tell us why an exhumation order of Richard Barron's body was sought from his office by the Donegal coroner following an application from the Garda on 10 October 1997? Why did the Garda on 6 October 1997 request that exhumation to be put on hold? What senior member of the Garda requested the exhumation order to be put on hold and what were the reasons for that request? Did the Minister not find this request unusual? Hindsight can be 20:20 vision but if the exhumation order had been allowed in 1997, Dr. Harbison's conclusions, which were only dealt with last month, would have enabled the Garda to deal with this issue once and for all. Can the Minister confirm that a number of gardaí who were suspected of wrong-doing in the initial investigation into Richard Barron's death in 1996 were assigned to the Carty team to participate in his investigation of the process in 1999? Why was this allowed to happen? When serious allegations are made against members of the Garda Síochána it is vitally important that such allegations are fully and properly investigated within a reasonable period.

For the Minister to allow this situation to continue over a four year period is, at best, incompetence on his behalf. If he is not committed to establishing the truth in this case to restore his own reputation, he should permit a public inquiry to take place to allow the reputation of the Garda Síochána to be restored to its rightful place of respect and high esteem in our society. It is necessary for the future of our constitutional democracy that this festering sore be lanced once and for all.

Caoimhghín Ó Caoláin:

I fully support the call for a public inquiry into the conduct of the Garda Síochána in County Donegal since the mid-1990s. Such is the scope and seriousness of the issues raised in this motion that they challenge not only the conduct and management of the Garda in County Donegal but also at a State level. They also challenge the stewardship of the Department and Minister for Justice, Equality and Law Reform.

It may be that only a small number of gardaí were directly involved in the sinister events which have come to light since the death of Richie Barron in Raphoe in 1996. However, clearly those activities could not have continued without the knowledge of many more within the force both in Donegal and outside it. At the core of this scandal is the attempted frame-up of Frank McBrearty junior for the murder of Richie Barron. This involved a forced and false confession, the arrest of other members of the McBrearty family and a catalogue of harassment against the McBreartys and others over a long period.

One of the most notable features of this case is the internal Donegal Garda division circular of 27 February 1998 signed by Superintendent Denis Fitzpatrick. It referred to "attempts to discredit gardaí from this division and other members involved in the Barron investigation." It went on:

There is information to hand which suggests that Frank McBrearty (Snr) from Raphoe . . . is financing a campaign to discredit members of the force . . . Members of your district force and gardaí who have assisted in the investigation into the Richie Barron death should be notified of the matter and directed to report any incidents or unusual contact that may occur either with Mr McBrearty or his extended family. This document is for garda use only and is confidential."

In a letter to lawyers for the McBrearty family a senior garda officer said he was not aware of the existence of such a circular. However, gardaí later informed Donegal District Court that the circular existed. It gives an extraordinary insight into the thinking of gardaí involved in this case. If this was what was committed to paper we can well imagine the attitude that prevailed in the privacy of the Garda station.

The case of a Strabane man, Edward Moss, was also remarkable. He made a personal injuries claim against the McBreartys and won a substantial out-of-court settlement. However, he was then pressurised by gardaí to take an assault case against Frank McBrearty junior. Mr. McBrearty was acquitted, but Edward Moss's solicitor, John Fahy, later had to write to the gardaí concerned to ask them to stop harassing his client to make further statements. John Fahy told Magill magazine in September 2000 that he had stopped taking cases in County Donegal courts because of Garda conduct. He said:

Gardaí were intimidatory to me as an extension of the client. I accepted that situation prevailed in the North but I had expected more from the gardaí in the South. Unfortunately, that is not the case. I'd rather take my chances in a Northern court.

In the light of the huge questions raised about the Garda in County Donegal, any future inquiry must also encompass the Garda investigation into the murder of my party colleague, Councillor Eddie Fullerton, a Sinn Féin member of Donegal County Council, who was murdered in his home in 1991. The Fullerton family have raised concerns about the role of the Garda in the case, surely a very grave matter given the indications that the murder involved collusion by British forces.

The McBrearty case shows that gardaí were acting with total impunity in County Donegal. They used the draconian powers available to them under the Offences Against the State Act for nefarious purposes and nobody held them accountable. Such was the regime that prevailed that certain gardaí were able to set up bogus arms finds to further their own careers within the force.

This case shows the need for the reform of policing in the State. There needs to be fundamental reform of the Garda, with an independent complaints procedure, the disbandment of the special branch and the repeal of the Offences Against the State Act. The Government cannot with credibility call upon the British Government to transform justice and policing in the Six Counties when it has clearly failed to keep its own house in order. The Minister has kicked this issue into touch. He hopes it will be buried until after the general election. However, a public inquiry must and will be held sooner or later. It should be held now and let the truth be told.

Minister of State at the Department of Justice, Equality and Law Reform (Ms Hanafin):

The clear consensus on all sides of the House is that the issues which have arisen in County Donegal must be properly investigated. There is no dispute about this. Neither is there any dispute about timing. All parties are agreed that—

An Leas-Cheann Comhairle:

The Minister of State has two minutes.

Ms Hanafin:

I thought we made up for lost time.

An Leas-Cheann Comhairle:

I do not know where we lost it. It was not since I came in.

Mr. Quinn:

I propose the Minister of State be allowed five minutes.

An Leas-Cheann Comhairle:

Is that agreed? Agreed.

Ms Hanafin:

I thank the House. All parties are agreed that an investigation must commence immediately. All sides of the House are united in a desire to see an effective, efficient and just result. What divides the House is the issue of whether there must be an immediate public inquiry utilising the statutory procedures contained in the Tribunals of Inquiry (Evidence) Acts.

The stages involved in a tribunal of inquiry under the 1921 Act, as amended, were set out by Chief Justice Hamilton in the Haughey v. Moriarty case, reported at [1999] 3 Irish Reports, page 1, as follows:

A Tribunal of Inquiry of this nature involves the following stages:

1. a preliminary investigation of the evidence available;

2. the determination by the tribunal of what it considers to be evidence relevant to the matters into which it is obliged to inquire;

3. the service of such evidence on persons likely to be affected thereby;

4. the public hearing of witnesses in regard to such evidence, and the cross-examination of such witnesses by or on behalf of persons affected thereby;

5. the preparation of a report and the making of recommendations based on the facts established at such public hearings.

All of us are aware that tribunals established under the 1921 Act, through no fault of their own, do not necessarily result in a speedy resolution of the matters sent to them. In recent years two tribunals of inquiry, the McCracken tribunal and the Finlay tribunal, have successfully and speedily completed their work and reported. The speed and efficiency of both tribunals have been the subject of favourable comment in the House and elsewhere. It is not a coincidence that each of those successful and effective tribunals was preceded by an expert investigation carried out by an eminent and suitably qualified person. The McCracken tribunal was preceded by the examination conducted by retired Circuit Court judge, Gerard Buchanan, and the Finlay tribunal was preceded by the examination conducted by Dr. Miriam Hederman-O'Brien.

It should be acknowledged that the people who made the decisions to appoint those expert investigators were Members of the Opposition who were then in government. The decisions they made contributed significantly to the success of those inquiries and the precedent they set is a good one which should be followed. I commend the Minister for Justice, Equality and Law Reform on following the precedent set by the Opposition while in government—

Mr. Rabbitte:

Five years later.

Ms Hanafin:

—in his decision to direct an examination to be conducted by an independent and qualified person.

It is necessary to stress that this decision is the start of a process. No door has been closed. No final decision has been made other than the one that the truth must come out. Whatever means is lawfully available to the Government will be used to ensure the truth is established and that every appropriate lawful action is taken to ensure justice is done and seen to be done.

It is not possible to address this issue responsibly without having regard to the constitutional requirement of due process. We live in a democracy where citizens have given to themselves certain rights and those rights belong to citizens. They are not ours to bestow or withdraw as we please. We are governed by those rights in our actions. No matter how expedient or convenient it may be to set those rights aside, we cannot do so. Our constitutional structure, not only requires, but also demands that we uphold those rights.

Included among those rights is what the Supreme Court has referred to as the constitutionally superior right to a fair trial. The Supreme Court has determined that this right is superior to the community's right to prosecute, our right to comment freely on issues of public importance and the natural and healthy inquisitiveness of the public. Necessary and obligatory respect for the constitutional rights of others at this stage of the legal process is the reason it is not possible at this stage to have a public inquiry under the 1921 Act. I stress the words "at this stage of the legal process" because decisions on possible prosecutions need to be taken within a reasonable time. I do not believe the rights of individuals to constitutional due process can forever cloak matters of legitimate public interest. In the short-term, however, they not only can, the law and the Constitution say they must.

In addressing the House on 11 September 1997 on the topic of the establishment of the Moriarty tribunal I had reason to refer to the Latin maxim fiat justitia ruat caelum– let justice be done though the heavens fall. So let it be in County Donegal.

Mr. Quinn:

I wish to share the time left to me with Deputy Noonan. I want to make three legal points in response to the dirge last night from the Minister for Justice, Equality and Law Reform and repeated in part in legal terms this evening by the Minister of State. Either the Minister is being wilfully misleading about his understanding of the law or his legal advice is woefully poor.

Last night the Minister accused the Opposition of setting aside a key legal principle: that in the hierarchy of legal rights the right to a fair trial is paramount. It is. While we are not threatening to expose anybody to an unfair trial, we acknowledge that the approach we adopt may mean no trial. As the Chief Justice confirmed in the case of Moriarty v. Haughey, in approving the word of Lord Justice Salmon: “There are, however, exceptional cases in which such procedures must be used to preserve the purity and integrity of public life without which a successful democracy is impossible.”

That we are supported in our approach by the McBrearty family, who are in the Public Gallery, should be more than enough for the Minister. In his trawl for further red herrings he suggested that the Opposition motion was contradictory in that it advocated a preliminary private inquiry. The Minister failed to inform the House that the exact procedure set out in our motion was used by the Moriarty Tribunal, established by this Government, and its validity was endorsed in the case of Haughey v. Moriarty by our Supreme Court.

The final spurious legal point raised by the Minister that I wish to address is his assertion that civil cases impede a tribunal of inquiry. In the case of the Supreme Court judgment of Mr. Justice Costello in Goodman International and Hamilton (No. 1), Mr. Justice Costello said that there is nothing in the Constitution which prohibits the two Houses of the Oireachtas from directing that a tribunal of inquiry be established to inquire into allegations of matters the subject of current civil proceedings. He said that such an inquiry does not infringe on the principle of the separation of powers and that the Minister may validly act on such a direction, and the tribunal may validly inquire into such allegations.

Notwithstanding the bombast of Deputy O'Kennedy, the words of Mr. Justice Costello could not be clearer. The real question is why the Minister for Justice, Equality and Law Reform is prepared to demean the law in the way that he did yesterday evening. I say to him, as one citizen to another, that, in this Republic which we share and in whose Government he currently serves, he has an awesome responsibility. How he exercises it will be held to account long after he ceases to be a Minister in this Government, and long after he ceases to be a Member of this House.

The Minister is an officer of the court by virtue of his profession as a solicitor. If he refuses the request of this House for a public inquiry, that decision will haunt him for the rest of his life. The Minister has presided over a litany of evasion and cover-up that has been put on the record of the House by Deputy Jim Higgins. In some cases information was brought to the Minister in confidence and trust by Deputies Howlin and Jim Higgins more than 18 months ago – in June last year – and the Minister has done nothing. He has given no reason as to why he has sat silent and done nothing.

Some day, there will be a public inquiry and the Minister will not be able to sit in silence as he now does because he will be before a tribunal under oath. He will have to answer then as to why he did not act now. As one citizen to another, I wish him well in that respect. On behalf of this democratic assembly, I apologise to the McBrearty family for the hell that they have been put through and for the abuse of power that was exercised in our name in this State.

Mr. Noonan:

This is one of the most serious debates that has ever taken place in Private Members' time in this House. It was a great pity that the debate this evening was spoiled by the outrageous attack launched by Deputy Gildea on our colleague Deputy Owen, who was a most distinguished Minister for Justice, Equality and Law Reform and about whom, outside the House, no-one would dare make the kind of allegations that were made here tonight.

Deputy Owen has served in the Oireachtas for over 20 years. She has always been honourable in her dealings and has been direct, frank and honest. She was one of the best Ministers for Justice, Equality and Law Reform that the State has had. She took on organised crime when it was difficult to do so and by putting the Criminal Assets Bureau in place, and by reforming the law, she made a serious impact on standing down organised crime in Ireland. It was outrageous that a Deputy who sought to draw a red herring across the debate, because he is letting down his county-men and county-women, friends and supporters, would cause a deliberate distraction by attacking such an honourable Deputy.

Deputy Owen's family has served the State well. It was her grand-uncle Michael Collins who in 1922 served in the first Government of this State that founded the Garda Síochána. Since the foundation of the State to the present we have been extraordinarily well served by the Garda Síochána. Some 80 years is a short space of time in the life of a nation but in the difficult circum stances that pertained in the early years of the State, the Garda achieved universal acceptability. That acceptability is one of the main factors that has contributed to the success of the Garda Síochána over the years.

There were other factors, principally the dedication and integrity of individual members of the force. This dedication has led to the deaths of 30 gardaí in the course of their duties since the force was founded, ranging from the first garda to die, Henry Phelan who was shot dead at Mullinahone in County Tipperary while buying hurleys for a hurling team in Callan in County Kilkenny that the station party had started. That was on 8 November 1922. The most recent death of a garda on duty was that of Sergeant Andrew Callanan who was on duty in Tallaght Garda station on 21 August 1999 when a man entered, poured petrol out of a can and set it alight with a flare. Sergeant Callanan lost his life while attempting to save the life of the man who had done this.

We have a dedicated Garda force with a reputation that the Minister for Justice, Equality and Law Reform should defend. They have been in the front line of the defence of democracy for many years and have, particularly in recent years, displayed extraordinary personal courage in the face of provocation and attacks from the Provisional IRA. Every day they went out, when the IRA campaign was being conducted in the South as well as in Northern Ireland, they knew that they were putting their lives on the line. They learned that there was danger and they faced that danger. The House is well aware of those like Garda Jerry McCabe who lost their lives in the course of their duty in combating terrorism in this State.

I say that to set this debate in context. The biggest problem for us tonight is that the events in Donegal, which have been described so eloquently by my parliamentary colleagues, have caused great disquiet, not only in Donegal but right through the State. We have a situation where the inactivity of this Minister is undermining the Garda Síochána. I accuse the Minister of failing to vindicate the rights of the McBreartys, the Barron family, the Divers from Ardara and of many other citizens in Donegal.

I accuse the Minister of deliberately failing to inform this House of the exhumation order which was forwarded to his Department back in September 1997, and again failing to inform the House that this request was subsequently withdrawn and that no explanation was given by the Garda Síochána. Yet, the Minister came to the House, answered questions, accepted the confidence of Deputies Jim Higgins and Howlin, and never informed them of some of the basic facts that were relevant to this case. This was even to the point when he must have known that a file was forwarded to the DPP in 1998 which said that, in the opinion of the DPP, there was no case to be answered and a serious doubt as to whether a murder took place. That has been substantiated by the State pathologist in recent months.

I accuse the Minister of undermining the Garda Síochána by letting this scandal run and run to the point where confidence in the Garda in Donegal is virtually destroyed and where it is ebbing nationally on a weekly basis because of his inactivity. Some on this side of the House have been Ministers for Justice and are proud to have been so. Some are proud of their records despite the fact that others might criticise us. There have been Ministers with good and bad reputations in the Department, as in any other. However, whatever legislation the Minister steers through the House, or whatever action he takes which forms part of his political CV, if he leaves office in a couple of months' time having undermined public confidence in the Garda Síochána through his inactivity, procrastination and a combination of inactivity and unbridled arrogance, he will go into the history books, on that issue alone, as the worst Minister who ever served in the Department.

If it were not for the Garda, we could not sleep at night. This is not, and never has been, a gentle society. The Garda keeps people safe on the streets and in their homes and beds. The essential mortar which keeps the force together is the fact that the public has confidence in it and will continue to have confidence in it if the Minister takes action.

The Minister must root out any bad apples in the Garda. There is prima facie evidence of crime committed by the Garda in County Donegal against people sitting in the Public Gallery. It is the responsibility of the Minister, and no other Member of the House, to ensure the rights of people whose rights have been transgressed are vindicated and that wrongdoing is exposed to the light of the truth.

While the public will continue to support the Garda, it will not support Garda activity which is hidden, swept under the carpet or covered up. The Minister has a responsibility, not only to those in the Public Gallery and their relatives in County Donegal, or the wider community in County Donegal and around the country, but also an absolute responsibility to preserve the integrity of the Garda Síochána. The only way this can be done is by him conceding and agreeing to the Opposition's motion for a full public inquiry into this scandal.

The Minister must let in the light, as that alone will restore confidence in the Garda. It is his responsibility to act, no one else has the power to do so.

Amendment put.

Tá

Ahern, Dermot.Ahern, Michael.Ahern, Noel.Andrews, David.Ardagh, Seán.Aylward, Liam.Blaney, Harry.Brady, Johnny.Brady, Martin.Brennan, Matt.Brennan, Séamus.Briscoe, Ben.Browne, John (Wexford).Byrne, Hugh.Callely, Ivor.Carey, Pat.Collins, Michael.Cooper-Flynn, Beverley.Coughlan, Mary.Cowen, Brian.Davern, Noel.Dempsey, Noel.Dennehy, John.Doherty, Seán.Ellis, John.Fleming, Seán.Flood, Chris.Fox, Mildred.Gildea, Thomas.Hanafin, Mary.Harney, Mary.Haughey, Seán.Healy-Rae, Jackie.Jacob, Joe.Keaveney, Cecilia.Kelleher, Billy.

Kenneally, Brendan.Killeen, Tony.Kirk, Séamus.Kitt, Tom.Lenihan, Brian.Lenihan, Conor.McCreevy, Charlie.McDaid, James.McGennis, Marian.McGuinness, John J.Martin, Micheál.Moffatt, Thomas.Molloy, Robert.Moloney, John.Moynihan, Donal.Moynihan, Michael.Ó Cuív, Éamon.O'Dea, Willie.O'Donnell, Liz.O'Donoghue, John.O'Flynn, Noel.O'Hanlon, Rory.O'Keeffe, Batt.O'Keeffe, Ned.O'Kennedy, Michael.O'Malley, Desmond.O'Rourke, Mary.Roche, Dick.Ryan, Eoin.Smith, Brendan.Smith, Michael.Treacy, Noel.Wade, Eddie.Wallace, Dan.Wallace, Mary.Woods, Michael.Wright, G.V.

Níl

Allen, Bernard.Barnes, Monica.Belton, Louis J.Boylan, Andrew.Bradford, Paul.Broughan, Thomas P.Browne, John (Carlow-Kilkenny).Bruton, John.Bruton, Richard.Burke, Ulick.Carey, Donal.Clune, Deirdre.Connaughton, Paul.Cosgrave, Michael.Coveney, Simon.Crawford, Seymour.Creed, Michael.Currie, Austin.D'Arcy, Michael.De Rossa, Proinsias.Deasy, Austin.Deenihan, Jimmy.Dukes, Alan.Enright, Thomas.Farrelly, John.Fitzgerald, Frances.Flanagan, Charles.Gilmore, Éamon.Gormley, John.Gregory, Tony.Hayes, Brian.Hayes, Tom.Healy, Seamus.Higgins, Jim.Higgins, Joe.Higgins, Michael.

Hogan, Philip.Howlin, Brendan.Lowry, Michael.McCormack, Pádraic.McDowell, Derek.McGahon, Brendan.McGinley, Dinny.McGrath, Paul.McManus, Liz.Mitchell, Gay.Mitchell, Olivia.Moynihan-Cronin, Breeda.Naughten, Denis.Neville, Dan.Noonan, Michael.Ó Caoláin, Caoimhghín.O'Keeffe, Jim.O'Shea, Brian.O'Sullivan, Jan.Owen, Nora.Penrose, William.Quinn, Ruairí.Rabbitte, Pat.Reynolds, Gerard.Ring, Michael.Ryan, Seán.Sargent, Trevor.Shatter, Alan.Sheehan, Patrick.Shortall, Róisín.Stagg, Emmet.Stanton, David.Timmins, Billy.Upton, Mary.Wall, Jack.Yates, Ivan.

Tellers: Tá, Deputies S. Brennan and Briscoe; Níl, Deputies Bradford and Stagg.

Question declared carried.

Question put: "That the motion, as amended, be agreed to."

Tá

Níl

Hayes, Brian.Hayes, Tom.Healy, Seamus.Higgins, Jim.Higgins, Joe.Higgins, Michael.Hogan, Philip.Howlin, Brendan.Lowry, Michael.McCormack, Pádraic.McDowell, Derek.McGahon, Brendan.McGinley, Dinny.McGrath, Paul.McManus, Liz.Mitchell, Gay.Mitchell, Olivia.Moynihan-Cronin, Breeda.Naughten, Denis.Neville, Dan.Noonan, Michael.Ó Caoláin, Caoimhghín.O'Keeffe, Jim.O'Shea, Brian.O'Sullivan, Jan.Owen, Nora.Penrose, William. Quinn, Ruairí.

Níl–continued

Rabbitte, Pat.Reynolds, Gerard.Ring, Michael.Ryan, Seán.Shatter, Alan.Sheehan, Patrick.Shortall, Róisín.

Spring, Dick.Stagg, Emmet.Stanton, David.Timmins, Billy.Upton, Mary.Wall, Jack.Yates, Ivan.

Tellers: Tá, Deputies S. Brennan and Briscoe; Níl, Deputies Bradford and Stagg.

Question declared carried.

Dáil Éireann díospóireacht - Wednesday, 21 Nov 2001