Dáil Éireann díospóireacht -
Friday, 22 Mar 2002

Vol. 551 No. 1

Tribunals of Inquiry (Evidence) (Amendment) Bill, 2002: Second Stage.

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

I move: "That the Bill be now read a Second Time."

Deputies will be aware of the background to this Bill. The Government has approved in principle the setting up of a tribunal of inquiry into allegations of misconduct on the part of certain members of the Garda Síochána in Donegal. The Government also decided to have amending legislation drafted to enable the tribunal to con duct its inquiry without prejudicing various court proceedings which have already been instituted in relation to the alleged misconduct.

When dealing with parliamentary questions or motions on alleged misconduct by gardaí in Donegal, I have consistently made it clear that I was not opposed to holding a public inquiry on the issue but that there was a real concern about the danger of prejudice to criminal and civil proceedings. I mentioned this problem specifically to the House on 23 May 2001 and advised Deputies that I was seeking the advice of the Attorney General. His advice confirmed that holding such an inquiry at that time could prejudice the civil and criminal proceedings which had been instituted as a result of the alleged misconduct and that, on the basis of the information then to hand, the best course was to let the criminal and civil proceedings run their course. If matters were not fully ventilated during those proceedings, then a tribunal of inquiry could be set up.

Neither the criminal nor civil proceedings advanced very quickly and there was real concern, which I shared, over the length of time it was taking to bring the various inquiries and pro ceedings to finality. On 13 November 2001, I announced to the House that I was appointing an eminent legal person to look into the matter. Mr. Shane Murphy, senior counsel, was shortly afterwards appointed by me: to conduct an independent review and undertake a thorough examination of the action taken and of relevant papers held by the Garda Síochána and the Department of Justice, Equality and Law Reform relevant to allegations that members of the Garda Síochána in the Donegal division engaged in criminal, unethical or unprofessional behaviour, particularly in the context of the investigation into the death of Mr. Richard Barron and with regard to the finds of bomb-making equipment; to advise taking into account relevant criminal, civil and disciplinary aspects and, mindful of the public interest, whether all appropriate steps had been taken with due diligence and expedition; to advise what further measures, if any, may now be taken to bring those who have engaged in criminal, unethical or unprofessional behaviour to account at the earliest opportunity so as to address public concerns; and, in this regard, to submit a report to me as a matter of urgency. I received Mr. Murphy's report on 30 January 2002. While recognising the need to ensure that civil and criminal proceedings are not compromised, Mr. Murphy endorsed the view that "a Tribunal of Inquiry represents the only comprehensive method of inquiry to resolve outstanding issues of fundamental public importance".

The enactment of this Bill will allow a tribunal of inquiry to be established to look into matters in Donegal without prejudice to criminal proceedings. I am pleased that Mr. Frederick Morris, former President of the High Court, has agreed to be the sole member of this tribunal. I will send the Government's proposed terms of reference to the Opposition spokesmen very soon and I look forward to consultations on the text of an appropriate resolution. I will try to facilitate the parties opposite by taking on board any suggestions of theirs which could help us reach as broad a consensus as possible as well as a final, satisfactory conclusion to this whole matter.

A further consideration underlying this proposed legislation is that the sole member of the Tribunal of Inquiry into Certain Planning Matters and Payments asked that the Tribunals of Inquiry (Evidence) Acts be amended to state clearly that a tribunal may be made up of more than one member and to provide expressly for a reserve member. Mr. Justice Flood suggested that this was necessary to avoid any possible challenge to the process of the tribunal. He also suggested that it should be provided that, where any of the full members of the tribunal is unable to act for any reason, the tribunal should be able to proceed to hear evidence on the basis of the remaining two members and the reserve member. This Bill responds to Mr. Justice Flood's requests.

Before I proceed to outline the provisions of the Bill, I refute certain criticisms which have been made of me on the grounds that I did not consult parties opposite about its provisions. The position is that all Stages have to be taken today so that the Bill can be passed and sent to the Seanad for consideration next Tuesday.

Mr. Howlin

Why?

Mr. O'Donoghue

The Bill has to be enacted before the Easter recess so that this House can pass the necessary resolution pursuant to it, which will be tabled by my colleague the Minister for the Environment and Local Government, to provide for the appointment of additional members and a reserve member to the Flood tribunal. The Bill has been considered and drafted carefully but with as much expedition as possible and the critics have to make up their minds whether they want us to facilitate the enlargement of the Flood tribunal at an early date so that it can proceed with its work. This is aside altogether from the fact that the Bill is necessary to establish the Donegal tribunal of inquiry. In response to contacts made with my Department on behalf of the Labour Party last week, and in view of the inevitably compressed time scale for consideration of the Bill, I decided that my Department should brief Opposition spokespersons on its contents.

Mr. Howlin

On Tuesday. The Bill was published on Wednesday.

Mr. O'Donoghue

However, Deputy Howlin declined this opportunity.

As I have already said, I will furnish to the Opposition parties the Government's proposed terms of reference for the Donegal inquiry and I look forward with interest to their views. It will be clear from what I have said, however, that the schedule for dealing with the Bill in both Houses is the only one compatible with the passage of the necessary Dáil resolution on the Flood tribunal before the Easter recess.

I now turn to the contents of the Bill which has two main purposes. First, it will facilitate the work of the tribunal of inquiry into the Donegal allegations by ensuring that a risk of prejudice to any pending criminal trial will not arise from the tribunal's proceedings. Second, it will provide a clear legal basis for the appointment of additional and reserve members of tribunals as requested by Mr. Justice Flood. The Bill also provides that a tribunal may appoint investigators to assist it in carrying out its functions.

Section 1 is a standard interpretation provision. Section 2(a) of the Tribunals of Inquiry (Evidence) Act 1921 provides that a tribunal can exclude the public from its proceedings where in its opinion it is, in the public interest, expedient to do so for reasons connected with the subject matter of the inquiry or the nature of the evidence to be given. Section 2 of the Bill before us amends this by adding a provision that a tribunal can, in particular, avail of its power to exclude the public if there is a risk of prejudice to criminal proceedings. Thus, it elaborates on the existing power to exclude the public by making clear that one of the circumstances in which this can be done is when there is a risk of prejudice to criminal proceedings. It should be noted that this provision applies to proceedings which are in existence at the time the tribunal is hearing the relevant evidence, not possible future proceedings.

Section 3 deals with the situation which would arise if a tribunal reports at a time when criminal proceedings are pending in respect of a matter connected with the tribunal's inquiries. This is a situation which is not adverted to at all in the tribunals of inquiry legislation as it stands. Subsection (1) provides that the person to whom the tribunal reports, for example a Minister or the Clerk of the Dáil, may apply to the High Court for directions regarding the publication of the report if he or she considers that publication might prejudice the criminal proceedings. Subsection (2) provides that, before determining the application, the court may hear the Attorney General – whose duties include representing the public interest before courts and tribunals – the Director of Public Prosecutions and the defendants in the criminal proceedings. Subsection (3) provides that the court may direct that the report or any part of it be not published for a specified period of time or until the court so directs. Subsection (4) provides that the court may, if it considers it appropriate, hear an application under this section otherwise than in public. There would be little point in having a provision to facilitate non-publication of a report because of the risk of prejudice to a criminal trial if the contents of the report were disclosed during the very proceedings the purpose of which is to determine whether publication should take place.

Section 4 deals with membership of tribunals and inserts six new subsections in section 2 of the Act of 1979. The new subsection (3) provides for the appointment of additional members to tribunals at any time after the tribunal is appointed. The existing section 2(1) of the 1979 Act already provides for the appointment of more than one member when the tribunal is initially established in that it states that a tribunal may consist of one or more than one person. The new subsection (4) provides that, subject to section 6 of the 1979 Act, a decision or determination of a tribunal may be that of a majority of its members and, in the case of an equal division, the chairperson shall decide. The phrase "may be that of a majority of its members", rather than "shall be . . ." is to take account of the possibility that decisions and determinations may be unanimous. The phrase "Subject to section 6 . . ." means that decisions on the award of costs are to continue to be made by the chairperson if the tribunal consists of more than one member, as provided for by that section.

Subsection (5) provides for the appointment of a member to replace the chairperson if he or she is unable to continue to act. It also envisages the situation in which the chairperson may step down from the chair but continue as an ordinary member. Subsection (6) provides that the appointment of additional members under subsection (3) and the designation of a new chairperson under subsection (5) shall be done by way of an amendment of the instrument by which the tribunal was appointed in accordance with section 1A of the 1921 Act, which was inserted by the Tribunals of Inquiry (Evidence) (Amendment) (No. 2) Act 1998, except that consent of the tribunal to the identity of appointees will not be required.

I will explain this in a little more detail. The 1998 (No. 2) Act provides for the amendment of the instrument establishing a tribunal in two situations, first where the tribunal has consented to the proposed amendment following consultation between it and the Attorney General on behalf of the Minister in question and second where the tribunal has itself requested the amendment. This provision was, essentially, intended to deal with changes in terms of reference, that is the matters which the tribunal is to investigate. The two circumstances mentioned in the Act arose in relation to the Flood Tribunal and gave rise to this provision, as Deputies will recall. However, while it is appropriate to require the consent of the tribunal to the appointment of additional members and to a change in the list of matters it is to investigate, it would be wrong to require its consent to the identity of the new members or new chairperson.

Accordingly, subsection (6) provides a procedure for the appointment of new members or a new chairperson by way of a modification of what is provided for in the 1998 (No. 2) Act for the amendment of instruments generally. Most important from the point of view of this House is that the amendment of any instrument shall be made pursuant to a resolution of both Houses, so the Dáil and Seanad will have the opportunity to debate the changes proposed for the tribunal. Subsection (7) provides that a member of a tribunal who is unable to act shall be deemed not to be a member for the period of that inability. With reference to subsection (8), one of the points made by Mr. Justice Flood was that it should be provided that, where any of the full members of the tribunal is unable to act for any reason, the tribunal should be able to proceed to hear evidence on the basis of the remaining members and reserve member. Subsection (8) is relevant to this proposal in that it provides that a tribunal may continue to act, notwithstanding one or more vacancies, if it is satisfied that the legal rights of any person affected would not be unduly prejudiced. An example of where a tribunal might consider that it should not continue to act because the legal rights of a person would be unduly prejudiced would arise if the original tribunal member has left the tribunal and that person was the sole member when particular evidence was heard, while the additional member(s) were not members or reserve members at that time. The tribunal might, in those circumstances, conclude that it would unduly prejudice a per son's legal rights were it to make findings on evidence it did not hear and to which it has access, perhaps, only in the form of transcripts. On the other hand, the tribunal might consider that it would not unduly prejudice a person's rights if it made findings in a situation in which a member was not acting as such for a brief period. It will be a matter for the tribunal to decide.

Section 5 deals with reserve members. Subsection (1) provides for the appointment of reserve members by the instrument establishing the tribunal or an instrument amending that instrument. So, the Minister for the Environment and Local Government will, assuming the appropriate resolutions are passed by both Houses, make an instrument appointing a reserve member to the Flood Tribunal and, similarly, one or more reserve members can be appointed by the instrument setting up any future tribunal on any subject. Subsection (2) sets out the role of a reserve member. He or she may sit with the tribunal during its proceedings, consider oral evidence, examine documents that are produced or sent in evidence and be present at deliberations of the tribunal. However, he or she may not otherwise participate in the proceedings or deliberations and may not seek to influence the tribunal in its decisions or deliberations. The principle on which this provision is based is that the reserve member, though not a member of the tribunal, will be fully au fait with its work and will be in a position to replace a full member if that becomes necessary. This model for the role of the reserve member is taken exactly – except for drafting changes – from that set out in resolutions of the Dáil and Seanad, passed on 5 July last, in relation to the appointment of a reserve member to the Flood Tribunal at a stage when it was proposed to proceed with the appointment of such a member on the basis of the legislation as it stands. Subsection (3) provides for the appointment of a reserve member to be a full member, if a full member is for any reason unable to continue to act as such.

Subsection (4) – again in line with the Dáil and Seanad resolutions of last July – provides that the appointment of a reserve member as a full member may be deemed to be operative from a prior date. This shall not be earlier than the date on which he or she became a reserve member. This provision can be best understood in the context of a tribunal whose work can be divided into two or more modules. The reserve member might be appointed as such during the hearing of evidence part way through the first module and, in the course of the second module, it might be necessary to appoint him or her to be a full member. In that case, it would be appropriate to backdate the appointment as a full member to the beginning of the second module. The appointee would be regarded as a full member for the whole of the second module but it would not be necessary or appropriate to deem him or her to have been a full member during the whole or part of the first module since that might already have been the subject of findings and a report by the tribunal as it was then constituted.

Where the appointment as a full member is backdated, subsection (5) provides that this shall not affect decisions or determinations made before the actual appointment. Were it otherwise, a situation could arise in which a decision of the tribunal, validly taken by a majority at the time, might be later regarded as invalid because it would not be the decision of the majority when the new member's appointment is backdated. As I have already outlined, section 4 provides that a decision of a tribunal consisting of more than one member is to be that of a majority. The final paragraph of section 5, subsection (6), provides that the appointment of a reserve member to an existing tribunal, or of a reserve member to be a full member of a tribunal, shall be by the same procedure as I outlined earlier in relation to the appointment of additional members and of a new chairperson. That is, the instrument appointing the tribunal will be appropriately amended pursuant to resolutions of both Houses of the Oireachtas.

Section 6, on investigators, is designed to remedy a defect in the existing legislation in relation to the power to compel a person to co-operate in a tribunal's preliminary investigation. It is well recognised in the case law that has built up over the past decade or so in relation to tribunals of inquiry that the work of such tribunals involves a number of stages, namely, a preliminary investigation of the evidence available; the determination of what is considered to be relevant; the service of such evidence on the persons likely to be affected by it; the public hearing of witnesses in regard to such evidence and the cross-examination of witnesses by or on behalf of the persons affected by their evidence; and, the preparation of a report and the making of recommendations based on the facts established at the public hearings. In 1999, the Supreme Court held in the case of Lawlor v. Flood, 1999 3 IR, that the principal powers of a tribunal under the legislation were to enforce the attendance of witnesses, to provide for their examination before the tribunal and to compel the production of documents and that the examination of witnesses, particularly those who were not willing to co-operate during the initial stages, was not a matter which, in the absence of express statutory authority, could be delegated by a tribunal to any other person or body. In other words, while a person can be compelled to attend before a tribunal itself to answer questions, she or he cannot be compelled to answer questions of the tribunal's legal team in the course of the preliminary investigation. Section 6 deals with this by providing for the appointment of investigators and for their duties and powers.

Under subsection (1), a tribunal may appoint investigators with the approval of the Minister who appointed the tribunal and the consent of the Minister for Finance or the approval of the Government if the Government appointed the tribunal. Subsection (2) provides that the appointment of investigators shall be for such term and subject to such terms and conditions as the tribunal may determine with the approval of the relevant Minister or the Government, as the case may be. Subsection (3) specifies what the role of investigators is to be. This is to assist the tribunal in the performance of its functions by carrying out preliminary investigations into matters relevant to the inquiry. In doing this, they are subject to the direction and control of the tribunal.

Subsection (4) provides that investigators will have power to require persons to give information, produce documents and answer questions and it imposes a duty on persons to comply with such requirements. Furthermore, under subsection (5), a person's answers may be reduced to writing and the investigator may require the person to sign the document. There are a number of precedents of this type of provision, one example being section 10 of the Companies Act, 1990 in relation to company inspectors.

The most notable characteristic of the powers being given to investigators is that they parallel the powers of the tribunal itself, except that they will be used at the preliminary investigation stage. Accordingly, I do not propose that the investigators should examine persons on oath – that is for the tribunal itself if it decides that the answers given by a person to the investigator merit the calling of that person to give evidence at a public hearing of the tribunal.

Subsection (6) provides that if a person refuses to comply with the requirement of an investigator, the latter may, with the consent of the tribunal, apply to the High Court which may order the person to comply with the requirement, thus making further non-compliance a contempt of court. This method of enforcement of the investigator's requirements is essentially the same as that provided for in relation to tribunals in section 4 of the Tribunals of Inquiry (Evidence) (Amendment) Act, 1997.

Under subsection (7), a person who is required by an investigator to give information, produce documents or answer questions shall be entitled to the same privileges and immunities as a witness before the High Court. For example, such a person, if sued for defamation as a result of what he or she says to an investigator or what is in a document produced to an investigator, would have the same privilege as if they had given this evidence or produced the document as part of High Court proceedings.

Subsection (8) protects the confidentiality of information obtained by investigators subject to the overall control of the tribunal. It will frequently be the case that the preliminary investigation discloses material that is of no further interest to the tribunal, perhaps because it falls outside its terms of reference. The confidentiality of this material must be respected and subsection (8) so provides. Subsection (9) provides that an investigator shall be furnished with a warrant as evidence of his of her authority to exercise the very significant powers of the office.

Section 7 makes it a summary offence for a person not to comply with the requirement of an investigator or to obstruct or hinder him or her. The penalty for such an offence will be a fine not exceeding €3,000 and-or imprisonment for a maximum of 12 months. The point to note in relation to this section is that we are not providing for trial on indictment which is provided for in the 1979 Act for broadly similar offences in respect of a tribunal. I believe that section 7 and the power to seek a High Court order under section 6(6) represent adequate and proportionate enforcement mechanisms to ensure that investigators will be fully effective in carrying out their functions on behalf of tribunals.

Section 8 provides that a statement or admission made to an investigator cannot be used as evidence against the person making it in any criminal proceedings. This again parallels section 5 of the 1979 Act which deals with tribunals themselves and, as such, it is also necessary in respect of investigators.

Section 9 increases the maximum fines for offences relating to non-co-operation with or obstruction of a tribunal from £500 to €3,000 on summary conviction and from £10,000 to €300,000 in the case of conviction on indictment. I note that Deputy Shatter has a Bill on the Order Paper which contains provisions which are not dissimilar to these. The fine of €3,000 on summary conviction is the maximum appropriate amount according to the advice of the Office of the Attorney General. The increase in the maximum fine on conviction on indictment is over 20-fold and, even allowing for the length of time since the maximum was set in 1979, is by any standards a very significant increase which will show how seriously this House regards the offences to which the penalty applies. This section applies in respect of offences committed after the passing of the Act, irrespective of whether the tribunal concerned was appointed before or after such passing.

Section 10 deals with the application of the Act which, with the exception of sections 4, 5 and 9, shall apply to tribunals established after its passing. That is to say that the provisions on membership of tribunals, reserve members and increased fines will apply to existing tribunals while the sections on the exclusion of the public and publication of reports where this might prejudice criminal proceedings shall apply to future tribunals. It is not considered necessary to apply these provisions to the existing tribunals which have been functioning satisfactorily under the present law on these aspects. The provisions on investigators are expressed by section 10(3) not to apply to existing tribunals unless such application is provided for by an amendment to the instrument appointing the tribunal. In other words, existing tribunals could use investigators provided their instrument of appointment is amended appropriately under the procedure in the 1998 (No. 2) Act which, of course, involves prior resolutions of both Houses.

Section 11 is a standard provision stating that any expenses incurred by Ministers in the administration of the Act shall be paid out of moneys provided by the Oireachtas. Section 12 is a standard provision dealing with the short title and collective citation.

This measure achieves a number of important objectives in that; it will ensure that the tribunal of inquiry in relation to the Donegal allegations can function properly having regard to the existence of criminal proceedings; it provides the legal base for the planned enlargement of the Flood tribunal; and the benefits of the provisions in respect of both these objectives and of the provisions on investigators will be available generally to tribunals in the future. Accordingly, I commend the Bill to the House.

Mr. Shatter

Deputy Reynolds will be taking the last five minutes of my time. It is an extraordinarily appropriate epitaph to the term of office of the Government that in the dying days of the Administration, in what is likely to be the second last week of this House sitting before the general election, we are dealing yet again with tribunals of inquiry.

When it comes to be written in the future, the story of the Government will be one of sleaze, corruption, and gross incompetence. It will be the story of a Government which had to be bludgeoned into acknowledging the need to address issues of major public concern. It is particularly appropriate that we have the Tribunals of Inquiry (Evidence) (Amendment) Bill, 2002, before us. There have been more motions before the Houses of the Oireachtas relating to the establishment of tribunals of inquiry, the amendment of their terms of reference and provision for new statutory mechanisms concerning tribunals of inquiry, during the lifetime of the Government than ever before in the history of the State.

The primary reason we now have a plethora of inquiries in place at a cost of millions of pounds to taxpayers is due to the corruption endemic in the Fianna Fáil Party over a number of years and the Taoiseach's failure to even notice obvious difficulties in the context of ministerial appointments. He refused to publicly pursue serious issues raised in regard to the former Minister for Foreign Affairs, Deputy Ray Burke, who was forced to resign. There is a whole series of other issues relating to Fianna Fáil Members of the House. One particular Fianna Fáil Member, who now adopts the Independent designation while regularly supporting the Government on votes, is Deputy Lawlor. Deputy Lawlor has single handedly ensured the tribunal of inquiry chaired by Mr. Justice Flood is prolonged and frustrated in reaching conclusions on issues of public concern. Hundreds of thousands of pounds of additional public money is being spent trying to get to the truth of issues to which he is central.

The legislation before us should not be rushed through the House. It originates for a number of reasons. In June of last year Mr. Justice Flood stated the need for additional members to be appointed to the tribunal of inquiry and it has taken until today for the Government to bring forward the legislation required to meet that need. In the context of Garda misconduct in Donegal, Members on the Opposition side have been calling for an inquiry for over three years to address issues of major public concern in an appropriate forum which can provide answers. The Minister for Justice, Equality and Law Reform, who is guiding this legislation through the House today, resolutely opposed an inquiry and stood in the way of addressing these enormously serious issues, which cast a shadow over the Garda, in a reasonable period of time to avoid serious damage being done to the Garda's public credibility.

Mr. Howlin

True.

Mr. O'Donoghue

Untrue. That is a misrepresentation.

Mr. Shatter

That was damaging to the morale of the overwhelming majority of the force who go decently about their work on a daily basis, placing their lives at risk for the sake of the community and the security of the State. They found themselves under clouds of suspicion which was unfair to them. The Minister allowed the Donegal issues to continue to fester for a period that went way beyond what ministerial caution could provide an excuse for.

In dealing with this tribunal of inquiry legislation, I am very conscious of not saying anything that might prejudice criminal proceedings which are before our courts this week. Suffice it to say, the evidence derived from a criminal case currently before our courts, as reported in the daily newspapers, clearly illustrates the folly of this Minister in failing to come to terms with the seriousness of allegations being made about Garda misbehaviour in the Donegal area. If even a portion of what is being said in court turns out to be true, it is the greatest scandal in the history of the State relating to the Garda Síochána. The second greatest scandal is that we have had a Minister who has been paralysed by indecision for over three years and was incapable of addressing the issues that arose. The issues and concerns arose in the first year of this Minister's term of office, but out of charity to him I criticise him for not doing anything in only his last three years in office. In the context of the confused messages he was probably getting about this issues from the different areas from which messages come – the Garda Síochána or from within his Department – I understand that it may have been difficult, initially, for him to unravel the truth of the matter. However, after being in office for 12 to 18 months the conflicting messages he was getting and the oddity of some of what was happening behind the scenes should have led him straight to the only possible conclusion, that the legislation before the House today to facilitate partially addressing these issues should have been brought forward three years ago.

The manner in which the Minister has dealt with this issue in the last three years is indefensible and if he says that he dealt with it in this way because of advice received from the Attorney General, then the Attorney General has serious questions to answer to this House. He has serious questions to answer as to why, only after the Minister for Justice, Equality and Law Reform sought advice from outside counsel, he suddenly changed his mind and there was movement. What went wrong with the advice the Minister received from the Office of the Attorney General which led to years of paralysis? Why is this issue only being addressed now? In November last a motion was presented to this House on an all-party Opposition basis by Fine Gael, the Labour Party and the Green Party, calling for the establishment of a tribunal to investigate allegations of Garda misconduct in Donegal. Why did the Minister oppose it vehemently then, when he now acknowledges the need to address the issues? There is little doubt that if that motion had not been debated, with the consequent massive public criticism levelled at the Minister, we would not have seen this legislation today and there would have been no question of an inquiry into what happened in Donegal. We would be watching aghast the television news bulletins this week and reading in the daily newspapers reports of what is happening in the criminal trial that I have to be careful not to refer to in any detail.

Mr. Howlin

It is stark.

Mr. Shatter

The evidence in relation to it will clearly be of direct relevance to any new tribunal that is put in place. It illustrates starkly the enormous extent of the problem this Minister has sat on for an unconscionable period.

Yet again in this Chamber we are doing our business in a manner that is not in the public interest. This Bill was published on Wednesday this week. It is complex, technical legislation with profound implications, not only for any tribunal established to investigate the issues that arise in Donegal, but for existing tribunals or others that may be established. In the context of an area that has given rise to so much public difficulty and in the context of tribunals investigating unprecedented private corruption and public scandal, we should not be taking All Stages today. At the very least, only Second Stage should have been taken, with the remaining Stages taken some time next week after everyone has had an opportunity to reflect on today's debate. A plethora of court cases have been brought by those required to come before the Moriarty and Flood tribunals to give evidence of the wheeling and dealing they engaged in over many years. Through the courts, they have resisted tooth and nail being called to account and I predict that this legislation is going to give birth to a further plethora of legal challenges when existing or new tribunals seek to rely on the powers it confers.

From my study of the Bill in the brief period it has been available to me, it is clear that there are substantial anomalies and defects in it. There is not going to be a serious Committee or Report Stage today. There will be a cosmetic exercise and should the Opposition table a whole series of amendments, those amendments will be given short shrift. We might get to discuss one amendment before a guillotine is brought down. In the small number of amendments I will table on Committee Stage I have tried to highlight some of the real problems in the legislation, but this is not the way to deal with a serious issue.

In the context of Mr. Justice Flood seeking new legislation since last June, serious questions must be raised as to why this legislation is being pushed through the House in one day, one week before the Easter vacation and in what is likely to be the second last week of the sittings of this Dáil before a general election is called. The only reason this legislation is before us today is so the Minister will be able to say, when the election is called, that he did something about the issue, even if what he did was incompetent and badly thought out. However, the issue is far too serious to treat it in that manner. In the experience of this House, rushed legislation is always defective and bad and, in remedying one problem, may create a myriad of additional problems that the Minister of the day has not anticipated.

I will refer to some aspects of the Bill about which I have great unease and serious reservations. This measure allows a tribunal of inquiry in new circumstances to sit in private. The circumstances detailed in section 2 apply where there is a risk of prejudice to criminal proceedings. One of the reasons the Minister gave in the past for not investigating the issues in Donegal was the fear of prejudicing criminal proceedings. Interestingly, that defence, used by the Minister for two and a half years, was used at a time when no criminal proceedings had been brought against anybody. Even more interestingly, the Minister tells us this Bill is only designed to address criminal proceedings in being, not criminal proceedings anticipated.

I am concerned that the Bill is not sufficiently explicit in the way it deals with that issue. While there is a need to ensure that criminal proceedings are not prejudiced, there is also a substantial need, where there are allegations of corruption or public scandal, to ensure those allegations are addressed in public, that persons give evidence in public, that their evidence can be read by others who may know of those events but who may not, at the time a tribunal is sitting, have considered giving evidence to a tribunal, that the glare of publicity is available to ensure people are accountable for the evidence they give and that their evidence, if it can be challenged for truthfulness, is appropriately challenged. How many witnesses now offering to give evidence to the Moriarty and Flood tribunals are doing so only as a consequence of reading in their daily newspapers evidence given by previous witnesses and knowing it to be untrue? How much additional information has been given to both tribunals as a consequence of the glare of publicity for evidence heard in public? I believe only a portion of what is currently available to both tribunals would have been furnished if the tribunals had been sitting in secret.

I have a particular concern about this procedure. It may be that it is the lesser of two evils. In the context of the issues arising in Donegal, it might be the only way to come to terms with the matter. However, the major criticism of the Minister is that a tribunal could have been put in place three years ago, in respect of which this difficulty would not have arisen in the first place.

The Minister explained that neither of the main Opposition spokespeople, myself and Deputy Howlin, have yet been consulted about the terms of reference to be given to this new tribunal or on the motion he will bring before the House. Will the Minister clarify if that motion will be brought before the House next week or will it be left until after the next election? Given that the Bill is being dealt with in the House today, those consultations should have taken place by now. There should have been agreement by now on all sides of the House as to what the terms of reference should be to deal with allegations of Garda misconduct in Donegal.

In the weeks that have passed since the November debate in the House, I, like other Members, have been the recipient of allegations of Garda misconduct in Donegal in cases that have no direct connection to the McBrearty family or the other cases that were referred to by various Deputies last November. If there are serious allegations of Garda misconduct which relate to the manner in which the gardaí conducted themselves in the Donegal area, it is important that the terms of reference are wide enough to enable the new tribunal to properly address the serious bona fide issues that arise.

I have huge reservations about section 3 of the Bill and I have already detailed my reservations about section 2. Section 3 is extraordinary. It creates the possibility that a tribunal of inquiry could have completed its work over a one to three year period and its report could then be suppressed for years. It could be a decade before it is published because of the possibility that criminal trials may be prejudiced.

Section 3(1) refers to where a person "considers that the publication of the report might prejudice any criminal proceedings". The word "might" rather than "would" is used. The same phrase is used in subsection (3), which provides that "the Court may, if it considers that the publication of the report concerned might prejudice any criminal proceedings, direct that the report or a specified part of it be not published" for a specified period or until the court otherwise directs. Whatever about taking evidence in private to avoid prejudicing criminal proceedings in being, when a tribunal of inquiry has completed its work, its report should be published. It should not be published in part, because a portion of it is censored, or suppressed in total for an unspecified period at the discretion of a court. That is not in the public interest or in the interest of any person who might be called before such a tribunal to give evidence in public or in private. Where there is an allegation of misconduct, corruption or scandal which impacts on the public good or directly affects individuals in their health and welfare, the complete report should be published. There should not be any discretion with regard to any aspect of that.

In so far as the Minister wants to confer a discretion on the courts, he should provide, at a minimum, that for a court to decide that a report should not be published, the court should be required to conclude that its publication "would" prejudice criminal proceedings, not "might" prejudice them. The court would have to form a specific view in that regard. The legislation is seriously defective in that context and will give rise to substantial public unease when its full import is understood. It could create a situation where the issues arising in Donegal are the subject of a tribunal of inquiry that might complete its work in 18 months but whose report might not be published for up to five years. That is not in the public interest or in the interest of the Garda Síochána and it is grossly unfair to those people who allege they have been the subject of Garda misconduct and whose lives have been seriously and fundamentally impacted by such alleged misconduct.

Section 6 is interesting. It makes provision for investigators to be attached to a tribunal. That may not be a particularly complex issue if the investigators are investigating financial matters and what the tribunal requires, in effect, are accountants or financial analysts to go through papers. It may not be an unduly complex matter in the context of the conduct in which existing tribunals have engaged, where they have sought, through their legal teams, to take evidence or obtain information in private before sitting in public. I acknowledge that this section would get over the difficulty raised as a consequence of the Lawlor v. Flood court case in which, first, Deputy Lawlor objected to being asked to give evidence in private to the Flood tribunal and the courts held he could not be required to do so, and he was compelled to give it in public. Of course he later complained he had to give it in public and said he should be allowed to give it in private, but that was just an indication of the extent to which he played ducks and drakes with the tribunal.

In other areas, however, this is an ill-conceived and badly drafted section. Does it mean a tribunal can recruit its own private police force to conduct investigations if it wishes to do so? It may well be, in the context of the Donegal issues, that a private investigation of some description may be required during which some allegations may be made. Can a tribunal ask that members of an outside police force be temporarily attached to it to conduct investigations?

What is the breadth of the investigations which can be conducted under this section? If a tribunal is appointed to investigate issues of public importance and if the tribunal determines that to do so it requires the appointment of investigators, why should the Government of the day be able to veto such appointment? If the tribunal judges it is in the public interest, why should the appointment of investigators require the approval of the Government or the approval of a Minister, and what will be the position if a tribunal says, "We want investigators appointed", and the Government says, "No"? What would be the position if the tribunal requires a particular level of resources for investigators and the Government refuses to provide the full resources required? What would be the position if a tribunal is actually investigating alleged misconduct on the part of an existing or former Minister of the party which is in Government? Have any of these issues been thought out or addressed, and what answer does the Minister have as to how this House can deal with them?

In the context of a tribunal of inquiry into matters relating to the Garda Síochána, if this new tribunal seeks to appoint new investigators from an outside police force or otherwise to investigate, how is that reconcilable with existing provisions in the Garda Síochána legislation? The very first thing I would anticipate is an Abbeylara-style court challenge to members of the Garda Síochána being investigated and questioned by investigators appointed to assist a tribunal.

An Leas-Cheann Comhairle

Deputy Shatter, there are five minutes remaining in this slot.

Mr. Shatter

It is an issue of huge importance and this section, as drafted, does not in any way adequately address it. I would predict that if this section is invoked in the context of the Donegal issue, we will find court challenges by some of those members of the Garda Síochána who are asked to give evidence to the tribunal delaying its work.

There is a need for a far more comprehensive section setting out how investigators are to work, the extent of the work they can do, and how, in the context of a tribunal investigating matters relating to the Garda Síochána, these powers interact and apply with other provisions contained in the Garda Síochána legislation.

Sir, I am conscious of my time and I want to let Deputy Reynolds in, but I just want to make one further point and will come back to other issues later on today.

Mr. Howlin

It is always dangerous to share time.

Mr. Shatter

The penalty the Minister provides for non-compliance or failing to co-operate with investigators in section 7(3) is a fine of €3,000 or a term of imprisonment not exceeding 12 months. There are plenty of people who are reluctant to co-operate with investigators in relation to tribunals who would be quite willing to take these risks. The penalty is not sufficiently serious. There should be the possibility of a charge on indictment, certainly in the context of the person who, having been fined a first time, continues to refuse to co-operate with investigators. That issue is not adequately addressed in the Bill either.

The fact, Sir, that I now must conclude what will probably be the lengthiest contribution I have an opportunity to make on a Bill of this seriousness, is an indictment of this House and the manner in which we are dealing with these issues. Between now and Committee Stage, which is due to commence in about an hour, I hope the Minister might reflect on some of the points I have made and that there might be some possibility of some amendment being made to this Bill other than the two technical amendments he has tabled. However, I very much doubt if that will occur and I have grave concerns that this Bill will simply give rise to a plethora of additional litigation and court challenges and will not adequately address the very serious issues which need to be dealt with.

An Leas-Cheann Comhairle

There are two minutes remaining.

Mr. G. Reynolds

In that case, I will omit part of my speech. My concern has to do with what will be the terms of reference of the tribunal of inquiry into the investigation of Garda misconduct in Donegal. I have been given a file by a family of a person facing trial for murder in which key elements of the Book of Evidence are refuted and in which allegations are made of misconduct by the gardaí. Other allegations include that gardaí investigating the murder tampered with crucial evidence and also question the accuracy of statements taken by the gardaí in the course of the murder investigation.

The file raises serious allegations and contains serious concerns of the family of the individual who is facing trial for murder. I do not want to pre-judge or prejudice any forthcoming murder trial, but I am concerned that the terms of reference of the tribunal will not be broad enough to deal with the allegations made against members of the Garda who were involved at any time in the investigation of the McBrearty case or related cases but who now are not necessarily still members of the Garda Síochána in the Donegal Garda district but have been transferred to other areas. The terms of reference of the tribunal would need to be broadened to allow for the investigation of gardaí who have been involved in the McBrearty case and who are not necessarily based in the Donegal Garda district. If there are concerns over other investigations, particularly murder investigations, in which these gardaí have been involved, such investigations should also come under the terms of reference of this tribunal.

When drawing up the terms of reference, I hope the Minister will take the opportunity to take those issues into consideration because some of the information I received gives me cause for great concern. I do not want to be in the position of bashing the Garda Síochána, but if confidence is to be restored in the Garda, the terms of reference are broad enough to allow investigations of this type go ahead.

Mr. Howlin

I have mixed feelings as I rise to address this legislation. I suppose there is a sense of satisfaction that at long last the day has dawned when this issue, which has been forcibly and compellingly brought to the Minister's attention for years by this side of the House, is finally, if appallingly belatedly, being addressed. However, that sense of satisfaction is tempered by the mechanism being employed by the Minister in addressing this.

The way in which this issue was dealt with characterises, in the best possible way, this Minister, his approach to justice issues and his handling of his portfolio for five years. No matter what he says to the contrary, I have heard him trying to rewrite history, not for the first time. I could quote chapter and verse his other historic revisions, but he is now saying he never set his face against a tribunal of inquiry. He voted it down and argued against it repeatedly for years on end when questions were put, when Adjournment debates were tabled and, finally, when the entire Opposition put their names to a motion demanding action and an inquiry. He set his face against it. He had the brass neck to go further and state, as reported in column 598 of the Official Report of 20 November 2001, that he was gravely suspicious of its motivation and the motivation of the people in this House. How dare he. However, his tone now suggests that he was never against it, but that it was difficult. At the time, he said there were two compelling difficulties. That was the latest in his list of excuses. He said his opposition was based on the fact that it might prejudice the right of individuals to a fair trial. He has come up with a formula now, it was impossible to come up with a formula then.

I quoted at that time, in respect of that argument, the view that a tribunal of inquiry might prejudice a fair trial. I quoted at the time the judgment of the Chief Justice in the case of Moriarty v. Haughey. The Chief Justice of Ireland approved the words of Lord Justice Salmon as follows:

There are, however, exceptional cases in which such procedures must be used to preserve the purity and integrity of our public life without which a successful democracy is impossible.

The second argument at the time was that it would impede civil cases. Again, I quoted the case of the Supreme Court judgment by Mr. Justice Costello in Goodman International and Hamilton. Mr. Justice Costello said 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 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. It could not be plainer.

The reason we have not had this matter addressed for three years is that the Minister is incompetent, caught like a rabbit in the search lights of the Department of Justice, Equality and Law Reform and incapable of action. He was full of bombast on this side of the House for years. His record has been one of tinkering with the law and posturing in a macho way by claiming he would increase sentences and build more jails. That, when it all boils down, is the sum total of his legacy.

No structural reform and no courage or bravery to change the structure and accountability of An Garda Síochána have been exhibited. Despite resisting for years appointing an accountable police ombudsman, he has promised again in his dying days new legislation which he knows he will never introduce because he cannot wait for the opportunity to shake the dust of the Department of Justice, Equality and Law Reform from his feet. He cannot get out of there quickly enough. We know it and the world knows it. The Minister's legacy, meagre and all as it is, will be further impacted upon by future tribunals of inquiry and future analyses which will bring his inaction and obstruction to public attention.

This Bill was produced on a Wednesday. The Minister promised faithfully in this House that there would be cross-party discussion on the terms of reference and its mechanisms, like all tribunals of inquiry, which are instruments of the House. On Tuesday, my office was notified that a briefing was available, not consultation as promised by the Taoiseach in this House or consultation as promised by the Minister. I was not going to give any shred of respectability to the Minister's reneging on his promises and commitments to the House by having somebody read a Bill to me. I think I am long enough in the House to be able to read legislation without having somebody read it for me. What I wanted and expected was consultation where real inputs could be made into the shape of the legislation. The official who spoke to my representative could not have been more blunt. The Government had decided on the nature of the Bill. We could look at the contents of it, but our opinions of it mattered not a damn. For good measure, it was to be rushed through the House on a Friday morning in a matter of three hours.

This is complex and important legislation. Of all the issues that have riveted public opinion and this House over the years, that concerning the establishment and conduct of tribunals of inquiry and the legal framework within which they operate must be one of the most compelling. One would imagine that a Minister would want to take some modicum of care and time to allow proper scrutiny and analysis by the Members of this House on all sides and a proper timeframe during which outside scrutiny and advice could be obtained. One would expect a Minister to allow sufficient time for Committee Stage to see if we could improve the Bill. This is not normal Government legislation, it pertains to the structure of the House, because a tribunal of inquiry is an instrument of Parliament making inquiries in the name of the public.

It is not the Minister's instrument – it is the instrument of Parliament and the Oireachtas to look into matters of public importance. What have we got? The Bill was published on a Wednesday and rushed through on a Friday. A few amendments landed on our desks this morning. I did not even get them until I arrived in the House. They are technical amendments. This Bill is cobbled together such that the Minister, who published it on a Wednesday, has tabled his own amendments to it by Friday. I never heard tell of it. He reneged on his commitment to this House to consult. I was told belatedly that we would consult on the terms of reference. I expect that, but the terms of reference are predicated on the law so the shape of the terms of reference are determined by the Bill. I hope we are allowed look at the terms of reference and even have an input into them – I have, at least, another promise to this effect, although the worth of the current Minister's promises is a matter of debate. The legislation on which the terms of reference will be built lawfully is decided already and the views of the Opposition are neither sought, required nor welcome. It is shameful but it is part of the way this issue has been dealt with from the beginning. The Bill deals with a number of issues because it deals with tribunals in the round, and I will speak about a broader range of issues than the McBrearty case. However, it is the McBrearty issue which has brought this matter to a head.

When will we have the terms of reference? Is it intended that they will be brought before the House before the end of next week? We already have a full schedule for next week. Is it the Minister's intention that the terms of reference will be brought before the House before the conclusion of the Dáil? What level of consultation will there be? Will meaningful inputs be made or will there merely be another charade?

Garda accountability is critical to any democracy. We have argued this trenchantly from this side of the House and a long list of issues have caused concern. I have just been informed that Paul Ward won his appeal against his conviction for the murder of Veronica Guerin in the Court of Criminal Appeal this morning. These matters and the conduct of these inquiries must be of importance to the Minister if there is to be any confidence in the administration of justice. The facts of the Paul Ward case are well known. They are part of a pattern of issues which the Minister has refused to address.

The substantive investigation into the situation in Donegal was only one of the matters we asked the Minister to examine. Deputy Jim Higgins and I went to see the Minister in the summer of 2000 and on foot of information Deputy Higgins and I gave to the Minister an investigation was established. I hold in my hand my statement to the senior members of the Garda Síochána who called to my house in Wexford to take a statement from me. They were assistant commissioner Fachtna Murphy and detective superintendent Pat Breheny. I have heard nothing more.

Mr. Higgins

(Mayo): Likewise.

Mr. Howlin

I gave the statement on 4 July 2000. In his speech to the House last November the Minister referred to ongoing investigations, but these investigations disappear into the ether. Does the Minister understand that the establishment of an investigation does not mean the job is done? There was an investigation by a senior Garda officer into the Dean Lyons case. Where is the result? The Minister has to understand what transparency and accountability mean in a democracy. Appointing someone to examine an issue is not the end of the matter. That is not accountability.

I share many of the views expressed by Deputy Shatter. This Bill deserves careful analysis. It is important to the functioning of our democracy because tribunals of inquiry have, unfortunately, become an important instrument of public policy and of finding truths which cannot, apparently, be uncovered by any other means. We know from bitter experience that lawyers representing those who do not wish to facilitate early disclosure will ensure every loophole is explored. In legislation of this kind it is doubly important to get it right technically, because we know that every sentence will be parsed and analysed.

The Minister has said the Flood tribunal request as well as the McBreary affair has brought the Bill to the House. It is numbing to hear this. The McBrearty affair has continued for years and the request from Mr. Justice Flood was made in June 2001. Why are we dealing with the response to his request in three hours on a Friday morning in the second last week of this Dáil? What has been happening since June 2001 to prevent the matter being dealt with until now? Why is the Minister dealing with the matter in a way which does not permit proper scrutiny and analysis and does not allow time for comment outside the House by Opposition spokespeople? The Bill was published on Wednesday. Opposition justice spokespeople were in committee for most of Wednesday dealing with the Estimates for the Minister's Department and were in committee for most of Thursday dealing with two motions from his Department and with submissions from the Bar Council and the Law Library. The Minister knows how busy Opposition justice spokespeople were in the past 48 hours, yet he produced a technical Bill for which amendments had to be submitted within 24 hours of its publication. There was no time for analysis or to hear outside opinion on a critical issue which will certainly come before the courts for determination in the future, if it is enacted.

Section 2 proposes to amend section 2(a) of the 1921 Act, "by providing that a tribunal may exclude the public where there is a risk of prejudice to criminal proceedings". I am fearful of the exclusion of the public but I have indicated that I am willing, to a limited extent, to go along with this measure if it is the only way we can get at the truth. The explanatory memorandum notes that, "this provision applies to existing proceedings, not possible future proceedings". This was re-stated by the Minister in his speech a few moments ago. However, section 2(a) mentions only criminal proceedings and does not specify existing criminal proceedings. I refer this to the Minister. Is he sure the limit of this measure to existing criminal proceedings is ring-fenced and that it cannot be used as a shield against potential future proceedings? If this is not crystal clear to him will he accept an amendment on Committee Stage to insert the word "existing" before "criminal proceedings" so that there is no ambiguity? I ask the Minister to reflect on this.

Section 3 permits the High Court, on the application of the person to whom the tribunal reports, either the Clerk of the Dáil or the Minister who signs the instrument, to postpone publication of the report in certain circumstances, either for a specified period or until the court directs otherwise, if the court is of the view that such publication might prejudice any criminal proceedings.

I will address two elements of this proposal. I fear the coach and four that can be driven through this enactment by lawyers in that they can apply to the court to postpone the publication of a report if in the view of the court it might prejudice any criminal proceedings. Those who would be adversely affected by the report and findings of a tribunal of inquiry might well seek to use that as a shield to prevent publication.

Another element of the same proposal is that application to the High Court would be in camera where the court considered it appropriate. The practice of the courts since the foundation of the State is for proceedings to be held in public except in specified family law cases, about which exception I have the gravest reservations. The word “may” in section 3(3) will presumably ensure that the exercise of holding it in camera will be exercised judiciously so as not to circumscribe the absolute right of the public to be informed of the determination of a tribunal. The tribunal is paid for by the public and brought into being by the Houses of the Oireachtas. Anything that prevents the full truth or the findings of the tribunal from coming into the public domain has to be very carefully weighed and evaluated and the notion that even the evaluation of whether to publish it might be in camera gives me cause for grave concern.

We have very little time to debate and reflect on these matters. I hope the Minister will not simply dismiss the views expressed by Deputy Shatter and me as irrelevant and bulldoze through these proposals. We might live to regret it dreadfully if long tribunals of inquiry are stymied at the last hurdle by court cases that arise from this section.

Section 5 provides for the appointment of reserve members of tribunals and for the possible elevation of such reserve members to full membership. In the short time available to me I have given this some consideration and I am struck by the perceived use of such members by the Minister. He sees them as substitutes that are involved in being present for all witnesses, hearing all the evidence and having all the documentation, but having no function in coming to a determination or even in the formulation of ideas with the tribunal unless they are promoted to become a full members of the tribunal.

I have not fully thought through my position on this matter. However if a distinguished judge or other legal person is present for all the proceedings and hears all the evidence, the inputs that person might make in the general discussion, while not being part of the conclusions, might be useful to the tribunal in coming to a determination on a certain matter. He might have a particular expertise in an area under discussion that might be much greater than that of the formal members of the tribunal. It would be a shame if that person were precluded from input into the deliberations or advising the tribunal unless he is promoted to become a full member.

Section 7 provides that failure to comply with the requirement of a tribunal investigator or to obstruct or hinder him or her in the performance of his or her functions shall be a summary offence. A person could be theoretically liable to imprisonment for contempt under section 6. A person can be imprisoned for contempt of court, as has happened. The person could be prosecuted again for the same offence under section 7. Does that form some type of double jeopardy? The Minister might say that strictly speaking, contempt of court is not an offence, but we have seen that it does and can result in imprisonment and a formal sentence. Is it possible for somebody to face imprisonment for contempt under section 6 and imprisonment for obstruction under section 7 for the same offence?

I would have liked to have more time to tease out a number of other issues in the debate on this important legislation. I want to see it improved, but I also want to see the tribunal of inquiry established into the happenings in County Done gal, the so-called McBrearty affair. I hope, what will probably be the final dialogues, between the current Minister for Justice, Equality and Law Reform and those of us in opposition trying to hold him to account for a number of years, will be conducted in some mutual respect. The Minister should respect that we have important views to put forward and will make propositions worthy of consideration. They should be considered properly and where appropriate adopted and not brushed aside. Despite assurances and promises, we had no consultation in advance.

My 30 minutes on this important legislation are complete. I regret I cannot wholeheartedly welcome legislation that will lead to something that I have sought for a long time, a proper inquiry into events in County Donegal. When we come to deal with the issues, I hope there will be a more respectful response from Government to the importance of this House, the rights of Members of the House and ultimately the constitutional prerogative for us to shape legislation and not the Executive.

Mr. Higgins

(Mayo): I will be very brief because it is important to reach Committee Stage as quickly as possible in order to tease out the very valid issues raised by Deputies Shatter and Howlin. The establishment of this tribunal is welcome, but with the considerable reservations mentioned by the Deputies. Although it is welcome, it comes much too late for the McBrearty, Barron, Divers, Shortt and Gallagher families. It comes extremely late from the point of view of salvaging the badly damaged reputation of the Garda Síochána.

Since I was first contacted by Frank McBrearty senior three years ago, I have pressed the Mini ster for Justice, Equality and Law Reform to establish a tribunal. On numerous occasions, Deputies Howlin, Shatter and I have stressed in this House that the only way the truth could be established in regard to the twisted, tangled web of illegal Garda misconduct in Donegal was to set up a tribunal of inquiry, presided over by a senior judicial figure, where witnesses and documents would be subpoenaed and where evidence from witnesses would be taken under oath in full public view. Time and time again, I stressed that the process of gardaí investigating Garda colleagues and friends was neither tenable nor credible and would go nowhere. Time and time again, we collectively pointed out to the Minister that the numerous so-called "Garda inquiries" were nothing other than a charade or a deliberate and calculated attempt to tread water in the hope and expectation that if the process was dragged out for as long as possible, the issues would somehow go away or certain members of the force would escape to the safe haven of retirement, with their pensions secure and in tact and, hopefully, evade disciplinary action. However, the Minister resisted our arguments and pleadings. He contented himself with the meaningless utterance that the Garda inquiries under way must be allowed to proceed to finality. Despite the mounting evidence of Garda misconduct, the dropping of murder allegations against the McBrearty family and Mark McConnell and the dropping of over 160 charges of alleged breaches of the liquor licensing laws, the Minister refused to intervene to wind-up the farce and set up a tribunal. As he has done so often in the past, he simply stood idly by and refused to act.

As has been said, last November the Labour Party initiated a Private Members' motion in this House, which was co-sponsored by the other Opposition parties, designed to set up such a tribunal. The Minister flatly rejected the proposal by putting forward a list of unsustainable arguments as to why such a move was not possible. He was relying on the advice of the Attorney General who gave such advice without having seen the files from the DPP. He contended there should not be a tribunal because it could cut across pending or future criminal proceedings. However, the only such proceedings at present are those before the Sligo court this week such as the charges against Garda informer, Bernard Conlon. The only pending charges are those against four other Garda informers and detective sergeant John White, charges relating to the illegal possession of a firearm. They have absolutely nothing to do with the McBrearty affair or the other Donegal cases.

Had the Minister acted as he should, and on time, these people would have been before the tribunal three years ago before any charges were brought. No charges have been brought against the real culprits in this sorry sordid saga, the members of the Garda Síochána who acted so irresponsibly in deciding that a road traffic death was to be switched to a murder investigation with such horrific consequences for those wrongly arrested and accused of murder, destroying their lives, reputations and businesses. No charges have been brought against the Garda Síochána who destroyed the lives of the Divers family in Ardara by accusing them of planting explosives on an MMDS mast. No charges have been brought against the Garda Síochána who wrongly accused publican, Frank Shortt, which led to his spending all but 14 days of a three year prison sentence. No charges have been brought against the Garda Síochána who wrongly accused the law-abiding Gallagher family of having explosives on their land, who ploughed up the farm, authorised the permanent presence of a helicopter over the farm, leading to their sheep being destroyed and losing their lambs by running against the wire fences and by putting their machinery contracting business out of business and literally to the wall. No charges have been brought against the gardaí who were involved in the alleged planting of explosive devices across the Border in Northern Ireland. Instead of disciplinary action and charges, the only sanctions levelled against such gardaí was to transfer them to high profile posts and, in some cases, they were actually promoted.

The whole basis of the Minister's refusal to establish a tribunal last November is demolished by the Bill before the Dáil today. What was impossible a mere four months ago has suddenly become possible overnight. Last November the Minister did exactly what his subordinates in the Garda Síochána tried to do for so long, that is, to buy time. He asked the chairman of the Bar Council to nominate a legal person to undertake an examination of the actions taken, of the papers held by the Garda in the Department of Justice, Equality and Law Reform and to advise what measures should be taken to bring those members engaged in criminal, unethical or unprofessional behaviour to account. There is little doubt in my mind but that by assigning this task to senior counsel, Shane Murphy, the Minister hoped and assumed we were talking about a six month project and that the general election would be over by the time Mr. Murphy reported back. Instead, thankfully, it turned out to be a six weeks project. Mr. Murphy examined the files and found an unholy mess and a mass of contradictions. He offered the opinion that the only way the entire saga could be properly examined was by way of a tribunal of inquiry. Effectively, Mr. Murphy told the Minister the last thing in the world he wanted to hear.

This House is extremely grateful to Mr. Murphy for the expeditious and decisive manner in which he undertook his assignment. He has served this country, the Barron, McBrearty, Divers, Shortt and Gallagher families well. He has served the other individuals and families well who may well come forward, as Deputy Shatter said, with yet further allegations when the tribunal advertises its existence and terms of reference. Mr. Murphy has also served the Garda Síochána well. The Minister's prevarication in failing to grasp this particular nettle has done irreparable damage to the collective reputation of the Garda Síochána. He has also damaged the morale of the force because of the negative impact of the ongoing spate of undealt with revelations. I would say to the Minister if he were here, but he has absconded, hopefully pro tempore, that he has damaged very badly public confidence in the force – zero tolerance indeed. He has been utterly indecisive, totally negligent and appallingly and unbelievably incompetent.

The main reason we will now have a tribunal of inquiry is because Shane Murphy delivered before time. The other reason we will have a tribunal of inquiry is to save the Minister's hide. At least, we will now have a tribunal, albeit at the 11th hour. It is important that the tribunal hearings get under way as quickly as possible. I would like the Minister to clarify the location where it has been decided the tribunal will sit. Are we talking about a Donegal location, a Dublin location or it is possible that some of the proceedings may, in fact, take place in Donegal with the balance taking place in Dublin? I share my Opposition colleagues' reservations that some of the proceedings may happen in private session. All proceedings of tribunals of inquiry should be held in full public view and gaze.

I wish the tribunal well because it is what we have been pressing for. However, we want to know who killed Richard Barron and why the investigation into his death was so cruelly mishandled. We want to know why the McBrearty, Divers, Shortt and Gallagher families were deliberately victimised and who was responsible. We want to know who organised the planting of bombs across the Border. The members of the Garda Síochána responsible must be identified, brought before the tribunal and ejected from the force. The Garda Síochána is a good force that has stood the country and its citizenry in good stead since the foundation of the State.

Mr. O'Donoghue

The Deputy should spare us the hypocrisy.

Mr. Higgins

(Mayo): Thanks to the Minister and his incompetence, mishandling, bungling and prevarication, public confidence in the force has been badly damaged. The Garda is a good force and public confidence must be restored to it. The small but dangerous coterie of its members who have sullied its reputation cannot be tolerated within its ranks. They must be ejected.

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

This legislation is clearly of considerable importance but there have been a number of misrepresentations during the course of the debate which clearly were made for political reasons. I would like to deal in a calm fashion with some of the more outlandish allegations which have been tossed around the House.

Deputy Shatter accused me of refusing to establish a tribunal of inquiry in the past and he, Deputy Howlin and Deputy Jim Higgins sought to create the impression that I had opposed the holding of an inquiry throughout. No Deputy was able to produce any document of record in this House to state that I was against holding an inquiry. Throughout, I explained ad nauseam how I was open to the idea of an inquiry, that I did not seek to close off that possibility, but that there were legal difficulties.

Unlike the Deputies opposite, I have responsibilities relating to advice I receive from the Attorney General. I acted in accordance with the best legal advice I could obtain. There is no doubt that criminal proceedings could be prejudiced by holding an inquiry in public. This was not just the view of the Attorney General. In his report Mr. Shane Murphy spoke categorically about the need to preserve the integrity of proceedings.

Mr. Shatter

The Minister did not publish that report or allow us to see what was in it.

Mr. O'Donoghue

It was in that context—

Mr. Howlin

Will he publish the report now?

An Ceann Comhairle

Allow the Minister to reply.

Mr. O'Donoghue

It was in that context that I felt obliged to bring forward legislation—

Mr. Howlin

Will the Minister yield to a question?

An Ceann Comhairle

Not at this stage. It is too early in the Minister's reply.

Mr. Shatter

The Deputy should try later.

Mr. O'Donoghue

I did not interrupt any Deputy. It was in that context—

Mr. Howlin

It is not an interruption. It is the procedure of the House to ask questions.

An Ceann Comhairle

The Minister, without interruption.

Mr. O'Donoghue

It was in that context that I brought legislation before the House which is being discussed now. It is quite explicit. For the first time, a chairperson of a tribunal of inquiry will be enabled to hear evidence in private if it is his or her view that criminal proceedings would be prejudiced. I have called for public inquiries across the House, but at no point did any Opposition spokesperson or Deputy come forward with the legislative mechanism necessary to ensure that due process would be respected and preserved.

I take little note of Deputy Higgins's lack of respect for due process. I am aware he was removed as justice spokesperson by Deputy John Bruton for the simple reason that his position was untenable.

Mr. Higgins

(Mayo): The Minister should read the papers.

Mr. O'Donoghue

I am also aware that he was not reappointed to that position by Deputy Noonan. The reasons are quite clear. It is obvious to anyone listening to Deputy Higgins today or who has listened to him in the past that he has no knowledge or concept of the question of a fundamental tenet of democracy in this and other jurisdictions which is the right to a fair trial.

Mr. Higgins

(Mayo): The Minister is pathetic.

An Ceann Comhairle

Order.

Mr. O'Donoghue

A man or woman has the right to a fair trial and no amount of nonsense from Deputy Higgins, misrepresentation of the facts or slurs can deviate from the point that, whether the Deputy likes it or not and whether I am Minister – because I am sure the same would be true of any successors – we must ensure above all else that due process is upheld. I make no apology to Deputy Higgins and his nonsense. He clearly does not have a clue what he is talking about.

Mr. Higgins

(Mayo): Is that right?

Mr. O'Donoghue

Clearly as regards—

Mr. Higgins

(Mayo): The Minister should mind his blood pressure.

Mr. Howlin

It is like the Abbey Theatre.

Mr. O'Donoghue

Regarding other matters raised, I have consistently stated that the allegations were the subject of criminal investigations and civil proceedings and that there were real problems because of the danger of prejudice to criminal and civil proceedings. There is no point in denying that.

Mr. Shatter

The Minister does not deal with civil proceedings in this proposal.

Mr. O'Donoghue

In November 2001, the Opposition decided to table a motion for the first time with a view to having a tribunal of inquiry established. That was a few short months ago. It completely ignored the problem of prejudice to criminal proceedings—

Mr. Howlin

Did the Minister hear what I read?

Mr. O'Donoghue

—and was reckless as to whether the guilty might go unpunished as a result.

Mr. Howlin

It was from the Chief Justice.

An Ceann Comhairle

Allow the Minister to conclude.

Mr. Howlin

He is misleading the House. He is telling lies.

Mr. O'Donoghue

The Opposition ignored the problem of prejudice to criminal proceedings—

Mr. Howlin

I did not ignore it. I read it into the record.

Mr. Higgins

(Mayo): He is deaf.

Mr. O'Donoghue

—and was reckless as to whether the guilty might go unpunished as a result.

Deputy Shatter appears to ignore the fact that the first allegations of harassment of the McBrearty family were made during the term of the previous coalition Government, but I will pass over that and deal with what is important.

Mr. Shatter

The Minister has been in office since June 1997.

Mr. Howlin

Five years.

Mr. Shatter

He has been pathetic in that position.

Mr. O'Donoghue

It is important that I ask what action was taken by the previous Minister on this matter. I suggest it was none.

Mr. Shatter

The Minister is absolutely pathetic.

Mr. O'Donoghue

Deputies asked about terms of reference and I made it clear I will provide a draft text for Opposition spokespersons and we can then discuss that matter.

Mr. Shatter

When?

Mr. Howlin

When?

Mr. Higgins

(Mayo): It is very good of the Minister.

Mr. Shatter

Will the Minister give way to a question?

Mr. O'Donoghue

No, I will not.

An Ceann Comhairle

No, the Minister without interruption.

Mr. Howlin

The Minister is trying to bulldoze us again.

Mr. Shatter

When will the Minister make the terms of reference available?

An Ceann Comhairle

Deputy Shatter will resume his seat. I will not allow any questions. It is too early in the Minister's reply.

Mr. Shatter

The rules of the House allow for questions.

An Ceann Comhairle

Not at this stage. It will be at a later stage in the Minister's reply.

Mr. Shatter

Where does it say that there is a timeframe?

An Ceann Comhairle

The Chair has asked the Deputy to resume his seat.

Mr. Shatter

There is no timeframe in the rules.

Mr. Howlin

When will we see the terms of reference?

An Ceann Comhairle

Order. Please allow the Minister to make his reply without interruptions.

Mr. Howlin

It is a valid question.

Mr. O'Donoghue

Deputy Howlin referred to allegations against senior gardaí—

Mr. Shatter

When will we see the terms of reference?

An Ceann Comhairle

Order, please.

Mr. O'Donoghue

—which he and Deputy Higgins brought to my attention. Deputy Howlin complained that he had heard nothing since. On more than one occasion I have told the House that the investigation was progressing, that more than 100 people were interviewed—

Mr. Howlin

Where is it now?

Mr. O'Donoghue

—but that it was not possible to bring the investigation to a satisfactory conclusion—

Mr. Howlin

After a year and a half?

An Ceann Comhairle

Order, please.

Mr. O'Donoghue

—as the original source of the allegations was not identified by them.

Mr. Higgins

(Mayo): All we are interested in is finding out who gave the information.

Mr. O'Donoghue

Serious allegations were made, but neither Deputy Higgins nor Deputy Howlin were willing to tell the senior investigating garda the source of their allegations.

Mr. Howlin

The only issue was whether they were true.

An Ceann Comhairle

Order, please.

Mr. O'Donoghue

They expected the senior garda concerned—

Mr. Howlin

Were they true or not?

Mr. Shatter

This is a fundamental issue.

Mr. O'Donoghue

—to proceed with his investigation when they refused to co-operate with the investigation.

Mr. Howlin

That is untrue.

Mr. Higgins

(Mayo): We gave them extensive interviews.

Mr. O'Donoghue

No amount of hypocrisy—

Mr. Higgins

(Mayo): The Minister is a disgrace.

An Ceann Comhairle

Order, please.

Mr. O'Donoghue

—can disguise that fact. It happens to be the truth. It might hurt but it is still the truth.

Mr. Howlin

Is the investigation over?

Mr. Higgins

(Mayo): The main issue was to find out who gave Deputy Howlin and me the information.

An Ceann Comhairle

Deputy Higgins is being disorderly.

Mr. Higgins

(Mayo): We co-operated.

Mr. O'Donoghue

It is still the truth.

Mr. Howlin

Is the investigation over?

An Ceann Comhairle

The Minister to continue his reply without interruption.

Mr. Howlin

Another one running into the sand.

Mr. Shatter

The Minister should bring forward the body of Deputy Gildea.

Mr. O'Donoghue

I reject out of hand the disgraceful allegation, made by Deputy Higgins, that the Garda investigations into matters in Donegal were a charade and I ask, in justice to the force and with a view to protecting at the very least the integrity of the senior members of the force, that he withdraw that allegation.

Mr. Higgins

(Mayo): I have no intention of withdrawing it.

Mr. O'Donoghue

I am confident that the investigation led by Assistant Commissioner Carty will be shown to be objective, comprehensive and thorough.

Mr. Howlin

When will the Minister publish the report? When will we see it?

Mr. O'Donoghue

I have no reason to believe otherwise.

Mr. Howlin

We have had three secret investigations and none of them has been published.

An Ceann Comhairle

The Minister is entitled to make his reply.

Mr. O'Donoghue

It is all very well to make allegations across the floor of the House for reasons of political expediency—

Mr. Howlin

When will the Minister publish the report?

An Ceann Comhairle

Deputy Howlin should know this is not Question Time.

Mr. O'Donoghue

It is a different matter when the integrity of people outside this House is being questioned and attacked without people being willing to put up or shut up.

Mr. Howlin

It is the Minister's integrity that is being questioned. Why does he not publish the report? He should publish the report or resign.

Mr. O'Donoghue

The question of criminal prosecutions is a matter for the Office of the Director of Public Prosecutions and I cannot speak for it. No doubt people such as Deputy Higgins would assume that I can but if he asks Deputy Shatter beside him, he will be told that I cannot. It is a fact that one member of the Garda Síochána has been charged—

Mr. Higgins

(Mayo): Charged with what?

Mr. O'Donoghue

There may be others. A number of gardaí is being investigated in the context of disciplinary issues. The suggestion by Deputy Higgins that I appointed Mr. Shane Murphy, Senior Counsel, as a delaying tactic is so blatantly outrageous that it is laughable. I was anxious that Mr. Murphy would report as quickly as possible. The venue of the tribunal will be a matter for the tribunal itself to decide.

In the course of his contribution, Deputy Shatter made statements in relation to section 6. He misrepresents the provision that the appointment of investigators would be subject to the approval of the Government when he says that the Government would, for improper purposes, prevent their appointment. What Government, accountable as it is to the Dáil and public opinion, would behave in such a way?

Mr. Shatter

Why then is that provision in the Bill?

Mr. O'Donoghue

This provision gives the Government oversight of what the tribunal is doing in this respect. It is similar to many other such oversight provisions in legislation where, for example, the appointment of staff is made subject to the consent of a Minister.

Mr. Shatter

Why is it necessary for the Government to exercise oversight over the tribunal? That is unprecedented.

Mr. O'Donoghue

I note Deputy Howlin's point about reserve members. The role of such members is, in substance, the same as set out in the resolutions of this House on 5 July 2001. They are, in effect, substitute members whose role prepares them to become full members if that becomes necessary. Deputy Howlin asked about whether criminal proceedings must be in existence for sections 2 and 3 to apply. I am advised by the Attorney General that the term "criminal proceedings" itself implies proceedings in existence. That is to say, pending or ongoing. I am satisfied that this wording is adequate.

I cannot accept what Deputy Shatter says about the section on investigators, that the functions should be spelt out in greater detail. These functions are stated as precisely in section 6(4) as the functions of tribunals themselves in the 1921 Act.

The right of each human being to a fair trial is something which has been acknowledged by the Supreme Court as one of the most fundamental constitutional rights. In that context, whether publication takes place is a matter which will be decided by the courts and not by a Minister. To do otherwise would be to set at naught the right to a fair trial. What this means is that the person in question would not be made amenable to the criminal courts. All that would remain would be findings of fact by the tribunal but no one would ever be punished on foot of those findings.

This legislation will prove to be efficient and effective. I am deeply interested, perhaps more than anyone else – although I would not assume that unto myself, unlike others – in ensuring that the reputation of the Garda Síochána is maintained and upheld. I am equally anxious to ensure that if there are matters that require to be dealt with either in the criminal courts or by way of discipline, these matters are dealt with. It is of immense importance that this is the case and that is the objective of this exercise. It is grossly unfair and misrepresents the position for people to come to this House and pretend, despite the fact that we are enacting the legislation setting up the tribunals of inquiry, that it is possible to start a public inquiry and prejudice people's right to a fair trial.

It is equally unfair to suggest that there was an attempt to sweep this matter under the carpet. There were several Garda investigations in relation to aspects arising out of the events in Donegal, files were sent to the DPP and matters were complained of to the Garda Complaints Board. One would have hoped that any one of these independent investigations might have yielded a conclusive result, but that did not happen. It was not a member of the Opposition who decided to bring in Mr. Shane Murphy, SC to examine this matter.

Mr. Howlin

It was a fig-leaf to our motion.

Mr. O'Donoghue

It was a decision which I made on foot of a recommendation I made to the Government. A central principle of the Tribunals of Inquiry (Evidence) (Amendment) Bill, 2001, is that the proceedings of tribunals should be in public save in exceptional circumstances which are provided for in section 2(a) of the 1921 Act. There have been occasions when tribunals have used section 2(a) to exclude the public from proceedings. Indeed, there have been some recent cases where persons appearing before tribunals have unsuccessfully challenged in the courts decisions of the tribunals not to exclude the public. In such cases, the courts have placed a heavy emphasis on the need for tribunals to conduct their proceedings normally in public. There is a clear logic to this because, for public disquiet to be allayed, it is important that the inquiry is held in public to the greatest possible extent. I accept that and that is consistent with the principle and the provisions of this Bill.

The change which section 2 makes is that it refers to a specific instance in which a tribunal may exercise its discretion to exclude the public where there is a risk of prejudice for criminal proceedings, to which I have referred, in effect, where the right of a person who is before the courts to a fair trial might be prejudiced, bearing in mind that this right has been described by the Supreme Court as one of the most fundamental constitutional rights afforded to persons.

The tribunal of inquiries legislation dates back 80 years and in the interim it has been amended four times. This, therefore, is the fifth amendment. In general, all the amending measures were occasioned by some specific need that emerged from the experience in relation to sitting tribunals or tribunals which had just concluded their work, or the anticipated needs of tribunals about to be established.

At this stage there is a need to look at the tribunals code in a comprehensive way and perhaps develop proposals to amend and consolidate it. I am pleased to note that the second programme of the Law Reform Commission includes among the topics which will be given priority an examination of the law on tribunals of inquiry. I understand that the commission hopes to publish a consultation paper on the subject by the autumn and I look forward to this with interest.

Unfortunately, it has been a characteristic of modern times that a number of matters of urgent public importance have arisen which have resulted in this House and the Seanad having to determine that tribunals of inquiry should be established. That all too many matters which have caused grave public disquiet should have emerged in the past decade is damaging to national morale and to the confidence which the public should have in public figures and institutions. What is vitally necessary in this situation, however, is that scandals are not allowed to fester and that measures are taken to get to the root of those matters of public concern and establish the truth of what did or did not happen. Here the tribunals mechanism has proved its worth over the years. The amending legislation which has been passed since 1979 has made it more effective as the courts, in interpreting the legislation and having regard to the Constitution, have ensured that the basic rights of persons who are the subjects of inquiries are always respected, consistent with the need to allay the public concern which has given rise to the establishment of the tribunal. I am confident that this Bill is another important step in enhancing the effectiveness of existing and future tribunals.

While the debate on Second Stage has at times been bad tempered and while false allegations and misrepresentations have been made, in particular by Deputy Higgins here in the House, I hope that the legislation will have the intended effect. I sincerely hope that this legislation will succeed in establishing a tribunal which will get to the root of what occurred in Donegal. In that context, the late Mr. Barron and his family have often been forgotten in the course of debates here and elsewhere. For the sake of the late Mr. Barron's family and society generally, I sincerely hope that we will ultimately find out precisely how Mr. Barron died and who, if anybody, was responsible.

Question put and agreed to.