Tribunal of Inquiry into Garda Activities in Donegal: Motion.

I move:

That Dáil Éireann:

–bearing in mind the serious public concern about allegations that members of the Garda Síochána in the Donegal Division engaged in unethical and criminal behaviour;

–noting the decision of the Minister for Justice, Equality and Law Reform in November, 2001, to request Mr. Shane Murphy, SC, to conduct an independent review of all the relevant papers and the progress on the investigations into these allegations generally with a view to the Minister receiving expert independent advice as to whether there are measures that might now be taken to bring matters to finality sooner rather than later;

–noting that having completed his review, it is the opinion of Mr. Shane Murphy, SC, that a tribunal of inquiry represents the only comprehensive method of inquiry to resolve outstanding issues of fundamental public importance;

–mindful that a number of criminal proceedings have been instituted arising from some of these allegations, and mindful of the ongoing investigation into the death of Mr. Richard Barron, and not wishing to prejudice these or related criminal proceedings;

resolves that it is expedient that a tribunal be established under the Tribunals of Inquiry (Evidence) Acts, 1921 to 2002, to inquire urgently into the following definite matters of urgent public importance:

(a) The making of extortion and hoax telephone calls to the home of Michael and Charlotte Peoples on 9 November 1996 and the subsequent Garda investigation into that complaint;

(b) Investigations in relation to the death of Mr. Richie Barron of Raphoe, County Donegal on 14 October 1996 with particular reference to the arrest and treatment of persons in custody in connection with that investigation, the progress, management and effectiveness of the Garda investigation with particular reference to the management of informants;

(c) Allegations of harassment of the McBrearty family of Raphoe, County Donegal and of relatives, associates and agents of that family by members of the Garda Síochána subsequent to the death of Mr. Barron including the issue and prosecution of summonses relating to offences alleged to have occurred between 28 October 1996 and 28 September 1998;

(d) The circumstances surrounding the arrest and detention of Mark McConnell on 1 October, 1998 and Michael Peoples on 6 May 1999;

(e) Complaints that some gardaí in County Donegal may have been involved in hoax explosives and bomb-making equipment finds (in particular discoveries on 11 September 1993, 19 November 1993, 11 January 1994, 14 March 1994, 4 June 1994, 13 June 1994 and 18 July 1994) and a review of the management and investigation of these issues;

(f) The circumstances surrounding the arrest and detention of Frank McBrearty Jnr. on 4 February 1997 and his subsequent prosecution in the Circuit Criminal Court in relation to an alleged assault in December 1996 on Edward Moss with particular reference to the Garda investigation and the management of both the investigation and the role of the gardaí in the subsequent prosecution;

(g) Allegations relating to the Garda investigation of an arson attack on property situated on the site of the telecommunications mast at Ardara, County Donegal in October-November 1996;

(h) Allegations contained in documents received by Deputy Jim Higgins on 25 June 2000 and in information received by Deputy Brendan Howlin on 25 June 2000 that two senior members of An Garda Síochána may have acted with impropriety;

(i) The circumstances surrounding the arrest and detention of seven persons at Burnfoot, County Donegal on 23 May 1998 and the investigation relating thereto;

(j) The effectiveness of the Garda Síochána Complaints inquiry process vis-à-vis the complaints made by Frank McBrearty Snr. and his family between 1997 and 2001;

and to report to the Minister for Justice, Equality and Law Reform and to make such findings and recommendations as it sees fit in relation to these matters;

and further resolves that–

(I) the tribunal shall report to the Minister for Justice, Equality and Law Reform on an interim basis not later than four months from the date of establishment of the tribunal and also as soon as may be after the tenth day of any oral hearings of the tribunal on the following matters:

(a) the number of parties then represented before the tribunal,

(b) the progress which will then have been made in the hearings and work of the tribunal,

(c) the likely duration (so far that may then be capable of being estimated) of the proceedings of the tribunal,

(d) any other matters that the tribunal considers should be drawn to the attention of the Houses of the Oireachtas at the time of the report (including any matters relating to its terms of reference),

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

(III) all costs incurred by reason of the failure of individuals to co-operate fully and expeditiously with the tribunal should, as far as it is consistent with the interests of justice, be borne by those individuals;

(IV) the Minister for Justice, Equality and Law Reform shall within 14 days of receipt of any report from the tribunal either apply to the High Court for directions regarding publication of the report or arrange to have it laid before both Houses of the Oireachtas.

The purpose of this motion is to enable the establishment of a tribunal of inquiry to examine the matters set out in the proposed terms of reference. I thank Members of the House for agreeing to deal with this matter before the Easter recess.

The Garda Síochána has served this country exceptionally well from the foundation of the State and the majority of members, including those based in Donegal, have done so in a professional way and with the greatest of integrity. This State owes a great deal to the Garda Síochána, which has stood as a bulwark of democracy, often in the most difficult of circumstances. Members of the Garda Síochána have been called upon to make the ultimate sacrifice in the service of the public. Despite the gravity of the matters we are discussing today we should not lose sight of that fact.

In our discussions today, I am constrained in what I can say regarding aspects of the terms of reference because, as the House is aware a number of court proceedings remain to be dealt with and I do not wish to say anything which might affect those proceedings.

In the early hours of 14 October 1996, the body of Mr. Richard Barron was found on a roadside in Raphoe, County Donegal. Once again I express my deepest sympathy to the family of the late Mr. Barron and express my particular regret that this case has not yet been brought to finality, despite the passage of time and intensive Garda investigations. The Garda investigation is ongoing. The finding of the remains of the late Mr. Barron set in train a chain of events which have led to today's draft resolution being laid before the House.

I do not intend nor would it be appropriate for me to outline the details of the Garda investigations, the details of criminal proceedings, the details of civil proceedings, the details of disciplinary proceedings or the details of complaints made to the Garda Complaints Board. It is enough that I say that all of the papers held by various bodies were examined, at my request, by Mr. Shane Murphy, SC, who was nominated to me for appointment by the Chairman of the Bar Council, and following his examination, reported that "a Tribunal of Inquiry represents the only comprehensive method of inquiry to resolve out standing issues of fundamental public importance". I and the Government are grateful to Mr. Murphy for his work which will be of assistance to the tribunal in its work. I also again thank Judge Frederick Morris who has agreed to chair this tribunal.

When dealing with parliamentary questions or motions in the Dáil on alleged misconduct by gardaí in Donegal, I have consistently stated that it is a matter of great concern that individual members of the Garda Síochána might be implicated in wrongdoing. It is essential for the reputation of the force that any alleged wrongdoing by members is investigated thoroughly and, if well founded, appropriate disciplinary or criminal proceedings should be initiated. I have consistently pointed out that individuals have a constitutional right to the protection of their good name and a fair trial. An integral part of our justice system is the presumption of innocence and the right to due process and I would not be party to any attempt to breach those rights by arbitrarily condemning individuals or trying to prejudge the outcome of proceedings.

I have not been against the principle of a public inquiry but establishing a tribunal of inquiry is not something to be undertaken lightly. On 7 February 2001, in response to a parliamentary question, I made it clear that I had an open mind as regards setting up a tribunal. I stressed that I wanted to see the truth of this matter determined. I said that I wanted to see public confidence in the Garda restored. However, the question I posed then went to the heart of the problem, how do we do this in an open and transparent way without interfering with potential civil and criminal proceedings? I also said at that time that I could understand the point that the completion of individual inquiries could still leave a concern that the bigger picture had not been addressed or that it had not been addressed in a way that deals with the issue of public confidence. I said I was of the view that the nature of the Donegal problem is such that it requires some form of comprehensive review that will examine and report on all aspects of the matter.

I also said on that date that the current arrangements for dealing with complaints are not satisfactory and need to be revised. I said I was looking at the possible establishment of new processes which would not only deal with complaints against individual members but would address wider issues of the type raised by the occurrences in Donegal. I made it clear that I had not ruled out the option of a public inquiry but I was not convinced at that time that it would necessarily be the best way of dealing with the matter.

On 23 May 2001, I again referred to the problem of possible prejudice to criminal proceedings 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.

However, 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 proceedings to finality. In addition, the decision of Mr. McBrearty and his associates to withdraw from the Garda Complaints Board a number of complaints they had made was a cause of concern. It is a matter of great concern to me that individual members of the Garda Síochána have been implicated in wrongdoing. In this regard, my guiding principle has been that it is essential for the reputation of the force that any alleged wrongdoing is investigated thoroughly and appropriate disciplinary or criminal proceedings taken.

I also want to see public confidence restored in the Garda, in so far as it has been adversely affected by the matter. We have an excellent police service. Let us be clear about that. The majority of men and women of the Garda Síochána daily carry out their job in the most exemplary manner. We should not forget this.

When we debated this matter last November, I made the point that this is a complex matter. I stated that the law which provides for due process cannot be shaped or moulded to fit the mood of the time. Rights must be respected. Due process must be protected. These are the fundamental principles which are the foundation of our legal system.

The Tribunal of Inquiry Acts, as amended by the Bill I introduced, provide the necessary mechanism to address these concerns. It is now a matter for both Houses of the Oireachtas to decide on the tribunal's remit, safe in the knowledge that the tribunal will be able to do the job it is called upon to do. I am absolutely convinced that to have tried to set up a tribunal without fully teasing out the very complex issues posed by the interplay of criminal trials, civil proceedings and the capacity of a tribunal to effectively operate would have resulted in a legal quagmire.

I now turn to the proposed terms of reference which are both definite, as required by the legislation, and comprehensive. They include: the making of extortion and hoax telephone calls; the investigations in relation to the death of Mr. Barron; allegations of harassment of the McBrearty family; complaints that some gardaí in County Donegal may have been involved in hoax explosives and bomb-making equipment finds; the circumstances surrounding the arrest and detention of Frank McBrearty junior; allegations relating to the Garda investigation of an arson attack on property situated on the site of the telecommunications mast at Ardara, County Donegal; allegations that two senior members of the Garda Síochána may have acted with impropriety; and the effectiveness of the Garda Síochána complaints inquiry process vis-à-vis the complaints made by Frank McBrearty senior and his family between 1997 and 2001.

I have already explained why I do not want to go into too much detail on the actual terms of reference. I urge other speakers to be careful when making their contributions on the issue. There are however one or two points I wish to make. The terms of reference are specific but they are carefully drafted to ensure that the tribunal of inquiry is not restricted in the scope of its inquiries. Furthermore, while the primary purpose of establishing the tribunal is to get at the truth, we must also look to the future. We must not only establish if something went wrong, but why it went wrong and what can be done in the future to prevent it happening again. For that reason, I emphasise the power of the tribunal to make recommendations as it sees fit. The recommendations of the tribunal may be of particular value in maintaining public confidence in the Garda Síochána.

The tribunal is asked to report to the Minister for Justice, Equality and Law Reform. I think it appropriate that the Minister for Justice, Equality and Law Reform be the person to determine, in the first instance, whether the report contains material that might pose a threat of prejudice to criminal proceedings, making it prudent to refer the report to the courts for a direction regarding publication.

Section (I) provides that the tribunal shall report to the Minister for Justice, Equality and Law Reform on an interim basis, not later than four months from the date of establishment of the tribunal and also as soon as may be after the tenth day of any oral hearings of the tribunal on the following matters: the number of parties then represented before the tribunal; the progress which will then have been made in the hearings and work of the tribunal; the likely duration, so far as that may then be capable of being estimated, of the proceedings of the tribunal; and any other matters that the tribunal considers should be drawn to the attention of the Houses of the Oireachtas at the time of the report, including any matters relating to its terms of reference. This is a standard provision and need not detain us.

Section (II) provides that the inquiry shall be completed in as economical a manner as possible and at the earliest possible date consistent with a fair examination of the matters referred to it. Section (III) provides that all costs incurred by reason of the failure of individuals to co-operate fully and expeditiously with the tribunal should, as far as it is consistent with the interests of justice, be borne by those individuals. Section (IV) provides that the Minister for Justice, Equality and Law Reform shall on receipt of any report from the tribunal either apply to the High Court for directions regarding publication of the report or arrange to have it laid before both Houses of the Oireachtas.

The allegations that have given rise to this res olution are matters of great public concern. We need to establish, once and for all, what happened in Donegal and to determine the truth of these allegations. I believe that the tribunal, as provided for in this resolution, will be able to effectively discharge this obligation without prejudicing various criminal proceedings which have already been instituted in relation to the alleged misconduct. I commend the motion to the House.

I move amendment No.a1:

By the insertion of the following paragraph after paragraph (j):

"(k) Allegations of Garda misconduct relating to the criminal prosecution of Frank Shortt with particular reference to the Garda investigation and the management of both the investigation and the role of the gardaí in the subsequent prosecution and any investigation conducted by the Garda authorities into these matters.”

Amendment No. 1 reads:

By the insertion of the following paragraph after paragraph (j):

"(1) The manner in which the Minister for Justice, Equality and Law Reform, the Department of Justice, Equality and Law Reform and the Garda authorities carried out functional and statutory responsibilities in respect of the matters referred to in paragraphs (a) to (j)”.

Should the Minister adopt amendment No.a1, it should then conclude “in paragraphs (a) to (k)”.

I welcome this motion to provide terms of reference for a tribunal of inquiry to investigate matters of alleged Garda misconduct in the Donegal area. This motion should have been brought before the House by the Minister, and should have had support from the Government benches, at least three years ago. The Minister referred to the death of the late Richie Barron in 1996. He, as Members of the House have done on other occasions, expressed concern and condolences to the members of Mr. Barron's family. The family has been left in a position where the investigation into the circumstances surrounding Mr. Barron's death have been confused and produced no final result. Serious question marks stand over the validity of steps taken by members of the Garda Síochána. The McBrearty family has found that the Minister failed to take seriously allegations of Garda misconduct made by them. The Minister constantly obstructed and refused to agree to the type of tribunal that is now being proposed. I welcome that we have reached this stage, but I regret that we did not reach it a long time ago.

In the context of previous debates in this House, it has been emphasised by Opposition Members that we have the greatest debt to pay to, and respect for, the vast majority of the members of the Garda Síochána who undertake their work in an honest and proper fashion. Many gardaí frequently place their lives at risk in the interests of the community. A shadow has been cast over the Garda Síochána by allegations of misconduct, made against a small number of its members, and it has been allowed to lengthen and grow dark by the Minister. He has failed to confront the issues that needed to be addressed as a consequence of an escalating series of allegations of Garda misconduct coming from one particular part of this State.

The amendments I have tabled deal with two particular issues. I propose to deal with the second amendment first. There are serious issues that the tribunal should look at in the context of the manner in which the Minister, his Department and the Garda authorities dealt with the matters that are now the subject matter of inquiry by this tribunal. As long ago as October 1997, an application was made to the Department of Justice, Equality and Law Reform for the exhumation of the body of Richie Barron. We know that within days of seeking the exhumation the Garda Síochána changed their minds. Despite the plethora of Dáil questions from the former Fine Gael spokesman on Justice, Equality and Law Reform, Deputy Jim Higgins, Deputy Howlin and me, it was not until October 2001 that the Minister informed the House that these events had occurred. Serious questions need to be asked as to what the Minister and his officials did following October 1997. Did they ask the Garda authorities why they changed their minds? These matters became increasingly fraught. Serious allegations were brought to public notice, complaints were made to the Garda Síochána Complaints Board and court proceedings ground into the dust. Real difficulties arose indicating a credibility problem with the manner in which these issues were being dealt with by members of the Garda Síochána? Did it not occur to the Minister that there was something distinctly odd and unusual about the application for an exhumation order and its sudden withdrawal? This was an issue of great controversy and difficulty.

That exhumation order, which was reapplied for and resulted in an exhumation in the summer of 2001, clearly provided some answers to some the questions raised. If the exhumation had been carried out in October 1997 it would have shone a light on the investigation being taken by the Garda into the circumstances surrounding the death of Richie Barron. It may have resulted in that investigation progressing in a manner that it has not yet done. It may have also resulted in a different perspective of some members of the Garda Síochana about whom should be investigated, avoided many of the difficulties caused to the McBrearty family and the many allegations that this tribunal may now have to confront.

There are also issues about the extent to which the Garda authorities kept the Minister and his Department fully informed of the investigations being carried out into allegations of Garda misconduct in Donegal. There are issues about the extent to which the current Minister, his departmental officials and the Garda took seriously the allegations of misconduct, as there are about the integrity of the investigations conducted by the Garda Síochána into other members of the force. Those are important issues because, if those investigations were properly conducted, it is unfair to have questions hanging over the gardaí who conducted them. Any difficulties with the investigations, such as gardaí not co-operating with their senior officers, should be part of the tribunal's inquiry.

There are many reasons the terms of reference brought before us by the Minister are inadequate in not addressing these serious issues, which are of fundamental public importance and must be addressed. This House should receive any recommendations made by the tribunal to ensure that similar difficulties do not arise again. I do not know why the Minister is unwilling to include these matters. I suggest to him that it is in his interests that they form part and parcel of what the tribunal should examine. If it turns out that the Minister was not kept adequately informed of these matters or was badly advised, then, in fairness to him, that should be known. If there are reasons the matters that arose in October 1997 were not pursued, or were pursued without the Minister being given satisfactory answers, then they should form part of the inquiry to bring them into public knowledge. It is usual that a public inquiry into matters of public importance encompasses the extent to which the Department and the Minister responsible were involved. This is particularly so in the context of a Minister whose statutory function, under the Ministers and Secretaries Act, 1924, covers the Garda Síochána and is responsible to this House for the conduct of its members. Therefore, there is a major flaw in the terms of reference.

The second issue is that, for reasons the Minister has not explained, the allegations made about the prosecution of Frank Shortt are not included. He served more than three years' imprisonment and subsequently, on appeal, the State did not even attempt to uphold the conviction. There are serious questions about why the State took this course of action, and if allegations about Garda misconduct in this case have validity. There is no reason these issues should not be addressed by this tribunal and I hope the Minister will accept the amendment on this matter.

Deputy Jim Higgins will address another issue we believe should be dealt with by the tribunal, but I am gravely concerned about two provisions in the Tribunals of Inquiry (Amendment) Bill, which we debated last week. The first is the provision which allows for the indefinite suppression by the courts of the tribunal's report so that Members of this House may not know of its outcome or of the tribunal's recommendation for many years. My second concern is that the legislation provides for special investigators to be attached to such tribunals but fails to deal with that in the context of other provisions in the relevant Garda Síochána Acts. I am concerned that this inadequacy may result in this tribunal facing huge difficulties in the courts should gardaí, who are brought before it, bring a court challenge. I hope I am wrong but I am concerned that the tribunal legislation and this motion are being processed with undue haste when they should have been dealt with in a more considered way at least three years ago.

Today is a signal day in that we are at the beginning of the end of a saga that has continued for a long time and caused many questions to be posed and debates sought in this House. It finally resulted in a comprehensive Private Members' debate that was the first time that the Government came to within one vote of defeat, and, if there had been a free vote, an overwhelming majority would have voted in favour of establishing a tribunal of inquiry. The Minister set his face against an inquiry that night and established another trawling exercise, which proved to be useful nevertheless, but today we finally have the terms of reference for a tribunal, which is long overdue, to address matters of enormous importance to this State and our democracy. At last, there will be a proper, thorough investigation into matters that divided communities, caused enormous concerns for individuals and almost wrecked the McBrearty family.

I acknowledge, as Deputy Shatter did, the position of the members of the Barron family, who lost a loved one, Mr. Richie Barron, and up to now had no adequate explanation of the circumstance in which he died. They deserve to be considered today and I hope the process, which we are putting in train, will bring satisfactory answers to them as well.

The McBrearty family were virtually put under siege and suffered grievously. I do not intend to spend too many of my ten minutes on the issues to be addressed as we have spent a long time on them already and because they will finally be independently investigated by a tribunal of inquiry.

The broader picture into which this inquiry fits concerns the issue of accountability. The hallmark of any democracy is transparent public administration, which is the most critical element in defending it. There is much cut and thrust in this House and occasionally political charges are made against Ministers or the Taoiseach, but our job is to ensure that the fundamental pillars, on which our democracy rests, work in a fair, equitable manner, that all citizens are equal under the law and that the State's instruments and agents carry out their duties in a transparent and open fashion.

It is clear we have been extraordinarily well served by the Garda Síochána since the foundation of the State. We have all said repeatedly that we are particularly grateful to them because they were the front line in defending the institutions of the State against a criminal conspiracy to destroy the State over many years. We are moving to more peaceful times, please God, and I hope the foundation stones of the Good Friday Agreement will change the operational structures in which the Garda Síochána operates. Notwithstanding the excellent performance of the Garda on behalf of the State, however, a burden falls on us to hold its members accountable because of the particular powers these Houses divest in them. That duty falls in an onerous way on the Minister for Justice, Equality and Law Reform who has a particular responsibility to maintain the principle of transparency in public administration, but his actions in relation to this matter did not impress me. We are coming to the end of a Dáil term and I do not want to make any rancorous comments on this issue but the Minister should have acted with more alacrity. He should have established the inquiry and brought closure to this matter for people who have suffered for so long.

We have had a number of inquiries. None of us, apart from the Minister, have seen the Carty report which has been available for a year or more. That was a comprehensive overview of the matter but where is the public information on it? An investigation was carried out by Assistant Commissioner Fachtna Murphy and Superintendent Pat Breheny into a narrow issue but we have not had a report on that. Where is that documentation now? Obviously they will now be subject to the tribunal but all these matters could have been dealt with more effectively on each step along this particular road.

The Minister spoke fine words in his contribution about due process, the rights of individuals and so on but rights were abused in this case and he did not move to ensure the issues involved were addressed effectively, efficiently and expeditiously. The Minister's words, therefore, ring hollow. I hope there is an acceptance now that we need to go further than simply inquiring into past events. We need to be sure about these matters for the future.

In acknowledging the wonderful work of the Garda Síochána, we also acknowledge that its members work in a different environment in that the structures that were appropriate to the 1920s and the 1930s, or even to the 1970s or 1980s, are not appropriate to the rights and freedoms individual citizens now demand. The structures I proposed in my own Bill, which include a new Garda authority and a Garda ombudsman, are appropriate and I hope the Minister will accept them, even belatedly. I hope also that whatever new Administration comes to office in the coming weeks will have that proposal as part of its progressive agenda.

I want to make some general points about the terms of reference, one of which relates to the McBrearty family. In every other tribunal of inquiry that primarily affected a group of individuals, those individuals had a particular burden in terms of the inquiry itself and since we have used the phrase "the McBrearty affair" throughout this entire matter, although it goes well beyond that family, they will also have a particular bur den. I hope the Minister will acknowledge in his response today that a huge financial burden has been placed on the family to date to defend their name and that the role they will have to play in terms of virtually all the terms of reference will be recognised with a proper legal support base, acknowledged by the State, which has been the norm in tribunals to date. I regret the Minister did not see fit to send the draft terms of reference to the McBrearty family's legal team so that they could proffer any observations. That was inappropriate but that action would be appropriate now.

Morale in the Garda Síochána has been damaged by recent events, the Minister is as attuned to that as myself, and this House must set out to ensure that morale is restored. Not only must there be full confidence of the public in the Garda but gardaí must have full confidence in themselves, their superiors and structures. That can be done now.

In terms of the Tribunal of Inquiry (Evidence)(Amendment) Bill brought before the House and the many issues we are dealing with in the dying of days of this Dáil, very little time has been provided for consideration of those measures. The terms of reference for this tribunal were faxed to us late the evening before last by the staff in the Department of Justice, Equality and Law Reform who are working very hard this week with a range or proposals going through Committee and Report Stages. We were asked to consider them and provide a response by midday yesterday, some few hours later, although we are busy in the interim. They are now before the House and it is unfortunate we did not have more time to be a little more reflective on all this legislation.

Due to a change in the law, the report on the Tribunal of Inquiry (Evidence)(Amendment) Bill, which went through the House last week, will not go to the Clerk of the House, which has been the norm since the beef tribunal in that these matters are not instruments of the Executive but of the House, but to the Minister who may then apply to the High Court to stop publication if he sees fit.

I welcome this day, belatedly, and I look forward to a speedy and comprehensive examination of these issues that have festered for too long. I hope the confidence people have in the Garda Síochána, whose members have served this nation so well, can be fully restored and that we can move on to a brighter day for public administration in this State.

(Mayo): Like my two colleagues, I welcome this day. It has been a long and tortuous journey but at last the moment of truth has arrived. What we sought three years ago, a tribunal of inquiry into Garda misconduct in Donegal, has been delivered. It is three years too late, however, because it was obvious from the outset that the various Garda inquiries were going nowhere and that the modus operandi of gardaí investigating their Garda friends and colleagues would not deliver anything. We have had a series of inquiries which produced nothing and what we predicted three years ago as being the only viable course of action, a tribunal of inquiry presided over by a judge to deliver the truth, has now come to pass.

There are a number of glaring omissions in the terms of reference. The first concerns the way in which the matter was dealt with by the Minister for Justice, Equality and Law Reform, his Department and the Garda. There was a breakdown in communications between the various instruments, agencies and personalities and the Minister, his Department and the Garda. An exhumation order was sought by Inspector Kevin Lennon, but that was subsequently countermanded by Chief Superintendent Denis Fitzpatrick, yet nobody in the Department, let alone the Minister, thought it worth his or her while querying why the order, first, had been sought and, second, countermanded. Had that been done at the time, it might have led to establishing exactly what was going on.

The quality of the Garda inquiries also needs to be examined in terms of how serious, efficient and competent they were and why none of them led anywhere? Rather than suspending people on pay, gardaí were transferred, in some cases on promotion, and some to high profile positions, appearing on television once a week dealing with the issue of road traffic and road safety. That rather bizarre situation also needs to be examined. It is bizarre that people who were under investigation for Garda misconduct in Donegal were transferred and, in some cases, rewarded and promoted, while no definitive conclusion was arrived at in relation to how they carried on their duties.

I am not satisfied there is within the Garda Síochána a comprehension of the seriousness of this matter. For example, last Friday Bernard Conlon was convicted in court in Sligo. He got a hefty jail sentence. It was said in court by a series of witnesses that his house was more like a Garda station than a private dwelling because of the degree of interaction and conspiracy between the gardaí and himself. He said the gardaí used to refer to him as "Detective Garda Conlon", yet the two gardaí who were named in court have still not been charged or brought before the courts. Why not?

In relation to this Donegal saga, not a single member of the Garda Síochána is the subject of a charge into the manner in which they conducted their affairs. The only garda before the courts at present is Detective Garda John White for the illegal possession of a firearm, which has nothing to do with any of the matters that are the subject of the terms of reference before the House. There is still not, within the Garda Síochána at senior level, a degree of appreciation of the need to be upfront, frank, honest, transparent, effective and to act expeditiously when people have obviously abused their positions.

There is an omission in this motion, in that, as well as the Frank Shortt case the Gallagher family of St. Johnston has not been included. When the Labour Party and other Opposition parties brought forward their motion to set up a tribunal of inquiry last November, I highlighted the Gallagher case. I mentioned it again last week when a motion was before the House to set up the tribunal of inquiry. The Gallagher family has the same degree of grievance as the Divers family, the Shortt family or the McBrearty family. The Gallagher family is a law abiding family with deep roots in Donegal, a reputation for being upholders of law and order, good citizens, business people, farmers and some of its members have been previously in the Garda Síochána, yet for some reason some of its members were the victims of a conspiracy where wrong information was given to the gardaí about the alleged presence of arms or explosives on their land. I have no problem with the gardaí investigating tip-offs, but in their case, this was a red herring. It was not a tip-off given in good faith. Themodus operandi of the gardaí in this case led to the devastation of the Gallagher family. The family's farm was surrounded; they were literally besieged. They were not allowed out even to go to the shop. There was a constant presence of a helicopter over the farm. Their sheep were driven into barbed wire fences with the result that sheep and lambs were lost. They were ostracised by the people in the neighbourhood. They lost their machinery contracting business and no apology has been forthcoming. That Gallagher family is as entitled as the McBrearty, the Divers and the Shortt families or anybody else concerned to be included in the terms of reference of this tribunal.

Another serious issue that should be investigated, which I brought to the attention of the Minister, by way of a parliamentary question, are allegations that conversations between solicitors and their clients and between persons in custody and their visitors may have been electronically listened to at Letterkenny Garda station. My information is that a person with the necessary technical experience and ability was brought from Dublin specifically to do this job. My information, which comes from a member of the Garda Síochána, is that this did happen. That is a very serious breach of ethical and professional conduct in addition to civil rights. I want that matter investigated within the terms of reference of the tribunal and I want the Minister to address it when replying to these contributions. I want an assurance that these allegations of the bugging of conversations at Letterkenny Garda station will be dealt with and thoroughly investigated to ascertain whether there is any veracity to them. My information in this instance has come from a member of the Garda Síochána attached to Letterkenny Garda station.

I look forward, with Deputy Howlin, to co-operating with the tribunal. I am very disappointed the information we gave to Fachtna Murphy and to Chief Superintendent Pat Breheny has not been expeditiously acted upon. We will have no hesitation in appearing before the tribunal and telling all that we know.

I want to make a brief statement. When this matter was dealt with in the Dáil last week I raised the issue of information I had received regarding a murder case and stated that I did not want to prejudge or prejudice any trial. I have since forwarded the information directly to the Minister and have seen a copy of a reply he gave to my colleague, Deputy Shatter, regarding the terms of reference for the forthcoming tribunal. In the letter I sent to the Minister when forwarding that file, I asked that when establishing the terms of reference of the tribunal that he consider allowing the tribunal to investigate senior gardaí involved in the investigation of the McBrearty affair and transferred to other Garda districts outside Donegal who were involved in further murder investigations. Unfortunately, the Minister's reply does not suggest that the terms of reference of the tribunal will allow those investigations to take place.

If this case goes to court, the people involved will feel they have not been given a fair opportunity because of the question marks over senior gardaí who were involved in the McBrearty case. If that is allowed to continue, there will always be questions regarding the good standing of the Garda Síochána. This tribunal is an opportunity to, once and for all, try to clear the names of the members of the Garda Síochána who were involved in the McBrearty and other cases in the Donegal division. If a number of senior gardaí, who were in Donegal at the time of those investigations, were involved in other cases, a question mark will also hang over those investigations. This is an opportunity to have the matter resolved. Will the Minister reconsider the requests I have made? I do not want a witch hunt which includes every Garda in the force. There are a number of questions which I have raised specifically with the Minister. Will the Minister reconsider his reply to Deputy Shatter and broaden the terms of reference to allow the case of which I speak to be investigated? As the Minister is aware, some of the information has been of concern to me. This is an opportunity to clear up the whole matter once and for all and to reinforce our necessary respect for the Garda Síochána. I hope the Minister will reconsider his decision.

I have listened carefully to the points made about the terms of reference and I have heard it said that my role as Minister for Justice, Equality and Law Reform should be included in the terms of reference. I will make one thing clear here and now. I have nothing to hide as regards my handling of the issue. On the contrary, I can stand over every single thing I have done. It is thanks to my efforts that we are now able to proceed with a tribunal of inquiry.

Then the Minister will accept the amendment.

When conflicts and legal issues were raised the Opposition was silent on how to solve the problem. Let us be clear about that. I have no intention of turning this tribunal into a political football. It is about what happened in Donegal. If the tribunal wants answers from me about any point I will gladly provide them. The terms of reference as suggested by Mr. Shane Murphy SC, who reviewed all the relevant documentation, did not include any proposal along the lines of those now being put forward by the Opposition. In any event the proposed resolution as suggested by me and in particular the instruction to make such findings and recommendations as it sees fit in relation to these matters gives the tribunal the scope to address, if it wishes, any issue which contributed to or failed to address Garda misconduct found to have taken place in Donegal.

I will not be party to any proposal directing the tribunal to look for fire where there is no smoke simply because the Opposition is desperate to gain political advantage. There are far more serious issues for the tribunal to focus on.

It has nothing to do with politics. It is about transparency.

Carlow-Kilkenny): Is this a reply to the amendment or the Minister's official reply?

I am making my official reply.

On a point of order, on the Order of Business this morning I was assured by the Ceann Comhairle that there would be an opportunity to put each of the amendments.

I regret that the Opposition cannot resist the temptation to include my role as Minister under the terms of reference of an inquiry set up to examine Garda activities in Donegal. Sometimes I think the Members of the Opposition are a bit like Oscar Wilde: they seem to be capable of resisting everything except temptation.

This is a serious issue.

It is a serious issue about authority. Let us avoid political slapstick for once.

The terms of reference are specific but they are carefully drafted to ensure that the tribunal of inquiry is not restricted in the scope of its inquiries. Furthermore, while the primary purpose of establishing the inquiry is to get at the truth, we must also look to the future. We must not only establish whether something went wrong but why it went wrong and what can be done in the future to prevent it from happening again. For that reason I emphasise the power of the tribunal to make recommendations as it sees fit. The tribunal is asked to report to the Minister for Justice, Equality and Law Reform. It is appropriate that the Minister be the person to determine, in the first instance, whether the report contains material that might pose a threat of prejudice to criminal proceedings, making it prudent to refer the report to the courts for direction regarding publication.

The allegations that have given rise to this resolution are matters of great public concern. We need to establish what happened in Donegal and to determine the truth of the allegation. The tribunal provided for in this resolution will be able to discharge this obligation effectively without prejudicing the various criminal proceedings which have already been instituted in relation to the alleged misconduct. I have take advice from Mr. Shane Murphy SC on the Shortt case. Mr. Murphy had advised that my Department should monitor proceedings in the Court of Criminal Appeal, before which this case is due in May. I accept his advice that at this stage the case should not be referred to a tribunal.

On a point of information, could the Minister clarify his last point? Mr. Shortt brought this appeal to the Court of Criminal Appeal and the State indicated that it was not now opposing the appeal. The Minister should clarify the State's position. If there is some incidental matter left to be dealt with at the Court of Criminal Appeal, that is no reason for not including the Shortt case. Perhaps the Minister could indicate whether it is his intention that the matter be included following completion of the matters in court? To be fair to Mr. Shortt that matter should be clarified to the House.

As I stated, I have taken advice from Mr. Murphy in this matter and I accept his advice. As regards what happens afterwards, it all depends. His advice has been to monitor proceedings of the court.

The matter of exhumation will arise in connection with term of reference (b). A specific reference is therefore unnecessary. I have already dealt with the issue in the House on a number of occasions.

Deputy Shatter commented on section 3 of the Tribunals of Inquiry (Evidence) (Amendment) Bill, which provides for the recipient of the report of the tribunal to apply to the High Court for directions about publication. This applies if the Minister considers that publication might prejudice criminal proceedings. On application the High Court may direct that some or all of the report not be published and can hear on this subject the Attorney General, the Director of Public Prosecutions and the person who is the subject of criminal proceedings. It is in the hands of the court. The Minister cannot suppress the report as Deputy Shatter has alleged.

There is no point in having section 2 of the Bill provide for the hearing of evidence in private if the report could be published. The report will contain the evidence heard in private, or at least a summary of it, and the tribunal's findings on that evidence. Thus, in some circumstances, it could have an even greater potential to prejudice criminal proceedings than would be the case if the evidence in question had originally been heard in public.

The Sergeant White situation, which relates to the circumstances surrounding the arrest and detention of seven persons at Burnfoot, County Donegal, on 23 May 1998 and the investigation relating thereto, is covered. The tribunal is free to investigate the case of the Gallagher family under point (e) – allegations relating to hoax explosives – and possibly under other headings. However, this case has not been identified as being central to the main allegations of Garda misconduct. The question of bugging may be investigated under (b), which pertains to the investigations regarding the death of Mr. Barron. I will seek a report from the Garda Síochána about the matter raised by Deputy Reynolds but without a detailed review, as was carried out in the Donegal matter, I could not contemplate its inclusion in terms of reference at this time.

During the course of this debate there has been a futile pursuit of a political smoking gun. There is no smoke because there is no fire.

Acting Chairman

The amendment is lost.

It is important that the tribunal sees the intention of the House when it looks at the record of the House. To avoid doubt, the Minister should restate that it is his understanding that the issue concerning Mr. Shortt is encompassed already in the terms of reference, notwithstanding his view that his Department should keep an eye on the appeal which is currently before the courts.

It seems the position is that the Shortt case is excluded.

Mr. Murphy has looked at all of the allegations which have been made and has made recommendations as to what the terms of reference should be. I have excluded none of Mr. Murphy's suggested terms of reference. I have expanded rather than contracted them. The situation in relation to Mr. Shortt was dealt with by Mr. Murphy. I have taken his advice and have proceeded accordingly.

It seems the Shortt case is excluded, as matters stand at present. That is why I want to put the amendment to a vote.

For the record, the Shortt case is excluded.

Amendment put.

Belton, Louis J.Boylan, Andrew.Bradford, Paul.Broughan, Thomas P.Browne, John (Carlow-Kilkenny).Bruton, Richard.Coveney, Simon.Crawford, Seymour.Creed, Michael.Currie, Austin.Deasy, Austin.Durkan, Bernard.Enright, Thomas.Fitzgerald, Frances.Flanagan, Charles.Gilmore, Éamon.Hayes, Brian.Healy, Seamus.Higgins, Jim.Higgins, Michael.Hogan, Philip.Howlin, Brendan.Kenny, Enda.McCormack, Pádraic.

McGahon, Brendan.McGrath, Paul.McManus, Liz.Mitchell, Gay.Mitchell, Jim.Moynihan-Cronin, Breeda.Naughten, Denis.Neville, Dan.Ó Caoláin, Caoimhghín.O'Keeffe, Jim.O'Sullivan, Jan.Penrose, William.Perry, John.Quinn, Ruairí.Rabbitte, Pat.Reynolds, Gerard.Ring, Michael.Ryan, Seán.Sargent, Trevor.Shatter, Alan.Sheehan, Patrick.Shortall, Róisín.Stagg, Emmet.Upton, Mary.Yates, Ivan.

Níl

Ahern, Dermot.Ahern, Michael.Ahern, Noel.Aylward, Liam.Blaney, Harry.Brady, Martin.Brennan, Séamus.Briscoe, Ben.Browne, John (Wexford).Callely, Ivor.Carey, Pat.Collins, Michael.Cooper-Flynn, Beverley.Cullen, Martin.de Valera, Síle.Dempsey, Noel.Dennehy, John.Doherty, Seán.Ellis, John.Fleming, Seán.Flood, Chris.Fox, Mildred.Hanafin, Mary.Harney, Mary.Haughey, Seán.Jacob, Joe.Keaveney, Cecilia.Kelleher, Billy.

Kenneally, Brendan.Killeen, Tony.Kirk, Séamus.Kitt, Tom.Lenihan, Conor.McGennis, Marian.McGuinness, John J.Moffatt, Thomas.Moloney, John.Moynihan, Donal.Moynihan, Michael.Ó Cuív, Éamon.O'Dea, Willie.O'Donoghue, John.O'Flynn, Noel.O'Keeffe, Batt.O'Kennedy, Michael.O'Malley, Desmond.O'Rourke, Mary.Power, Seán.Roche, Dick.Ryan, Eoin.Smith, Michael.Treacy, Noel.Wallace, Mary.Walsh, Joe.Woods, Michael.Wright, G. V.

Tellers: Tá, Deputies Bradford and Stagg; Níl, Deputies S. Brennan and Power.
Amendment declared lost.

I move amendment No. 1:

By the insertion of the following paragraph after paragraph (j):

"(1) The manner in which the Minister for Justice, Equality and Law Reform, the Department of Justice, Equality and Law Reform and the Garda authorities carried out functional and statutory responsibilities in respect of the matters referred to in paragraphs (a) to (j)”.

Amendment put.

Belton, Louis J.Boylan, Andrew.Bradford, Paul.Broughan, Thomas P.Browne, John (Carlow-Kilkenny).Bruton, Richard.Coveney, Simon.Crawford, Seymour.Creed, Michael.Currie, Austin.Dukes, Alan.Durkan, Bernard.Enright, Thomas.Fitzgerald, Frances.Flanagan, Charles.Gilmore, Éamon.Gormley, John.Hayes, Brian.Healy, Seamus.Higgins, Jim.Higgins, Michael.Hogan, Philip.Howlin, Brendan.Kenny, Enda.McCormack, Pádraic.McGahon, Brendan.

McGrath, Paul.McManus, Liz.Mitchell, Gay.Mitchell, Jim.Mitchell, Olivia.Moynihan-Cronin, Breeda.Naughten, Denis.Neville, Dan.Ó Caoláin, Caoimhghín.O'Keeffe, Jim.O'Shea, Brian.O'Sullivan, Jan.Penrose, William.Perry, John.Quinn, Ruairí.Rabbitte, Pat.Reynolds, Gerard.Ring, Michael.Ryan, Seán.Sargent, Trevor.Shatter, Alan.Sheehan, Patrick.Shortall, Róisín.Stagg, Emmet.Upton, Mary.Yates, Ivan.

Níl

Ahern, Dermot.Ahern, Michael.Ahern, Noel.Aylward, Liam.Blaney, Harry.Brady, Martin.Brennan, Séamus.Briscoe, Ben.Browne, John (Wexford).Callely, Ivor.Carey, Pat.Collins, Michael.Cooper-Flynn, Beverley.Cullen, Martin.de Valera, Síle.Dempsey, Noel.Dennehy, John.Doherty, Seán.Ellis, John.Fleming, Seán.Flood, Chris.Fox, Mildred.Hanafin, Mary.Harney, Mary.Haughey, Seán.Jacob, Joe.Keaveney, Cecilia.Kelleher, Billy.

Kenneally, Brendan.Killeen, Tony.Kirk, Séamus.Kitt, Tom.Lenihan, Conor.McGennis, Marian.McGuinness, John J.Moffatt, Thomas.Moloney, John.Moynihan, Donal.Moynihan, Michael.Ó Cuív, Éamon.O'Dea, Willie.O'Donoghue, John.O'Flynn, Noel.O'Keeffe, Batt.O'Kennedy, Michael.O'Malley, Desmond.O'Rourke, Mary.Power, Seán.Roche, Dick.Ryan, Eoin.Smith, Michael.Treacy, Noel.Wallace, Mary.Walsh, Joe.Woods, Michael.Wright, G. V.

Tellers: Tá, Deputies Bradford and Stagg; Níl, Deputies S. Brennan and Power.
Amendment declared lost.

I move amendment No. 2:

By the insertion of the following paragraph after paragraph (j):

"(1) The response of the Garda Síochána, the Department of Justice, Equality and Law Reform, the Minister for Justice, Equality and Law Reform and any other relevant State agencies to the allegations arising from the foregoing paragraphs and in particular the extent to which they exercised the powers and functions available to them fully, properly and in a timely manner."

Amendment put and declared lost.
Question put and agreed to.