Before beginning Leaders' Questions, I remind Members we are acting under Standing Orders and we are required to apply a fairly strict time limit to the questions. I would ask for the co-operation of all Members. I call Deputy Micheál Martin.
Leaders' Questions
Since yesterday, the controversy surrounding the O'Higgins report involving the leaked transcripts has escalated, particularly given the leaks of a different nature, one to "Six One" news, a separate leak of transcripts to the "Prime Time" programme and extensive leaks in the Irish Examiner again this morning. These are all fairly damaging in terms of their revelations, albeit perhaps crying out for a broader context.
The bottom line is the transcripts are now there for all to see. We cannot live in some sort of make believe world where they are not there because they are not officially there. The reality is they are in the public domain and they make for stark reading. It is stated that the instructions were at all times to challenge the motivation and credibility of Sergeant McCabe in regard to the corruption and malpractice allegations. The judge questions this, asking whether it was:
...because he was motivated by malice or some such motive and that impinges on his integrity. If those are your instructions from the commissioner, so be it.
To which the senior counsel replies:
So be it. That is the position, Judge ... I mean this isn't something that I am pulling out of the sky, Judge, and I mean I can only act on instructions.
The key point I made to the Tánaiste yesterday was that this needs to be comprehensively and transparently addressed; it cannot be left as it is. I accept it is entirely unsatisfactory we are where we are now but we are where we are. It may be uncomfortable for people but there are some stark realities emanating from this. As I said yesterday, it goes to the core of how whistleblowers and people who have made assertions and allegations in good faith are treated. The Guerin report was very strong on this aspect of the case in quoting all the previous people who were in charge of Bailieborough station for over a decade, and all speak very highly around the integrity and credibility of Sergeant Maurice McCabe.
A question, please.
I asked the Tánaiste yesterday whether she had spoken to the Commissioner or not, and she did not give a clear reply. I think Deputy Adams asked the same question. Can she confirm whether she actually had a meeting with the Garda Commissioner in regard to this entire issue, with a view to bringing about a mechanism to resolve it in a transparent manner? Has she had such a meeting or will she indicate to the House that she intends to have such a meeting?
Up to now it has been said that a section of the Act precluded by law any discussion on legal instructions and legal submissions. That appeared to change yesterday in so far as the Tánaiste identified it, not so much as a question of law, but as a question of legal privilege and the waiving of same. That clarity needs to be made absolute. It is my view that if it is an issue of the waiving of legal privilege, that is an issue or mechanism that may allow for some way to resolve this fully and wholly. I did it myself as a Minister in one case where allegations were flying around in regard to the haemophiliac tribunal. Much to the chagrin of many people, I waived legal privilege on that occasion to show there was no conspiracy on behalf of anybody to do anything.
Your time is up. Will you conclude, please?
Sometimes, where there are exceptional situations, what might not normally be considered has to be considered in the interests of getting to the bottom of this and getting the issue resolved.
Thank you. I call the Tánaiste to reply.
Finally, if I may, can the Tánaiste clarify, in the case of the meeting in Mullingar in 2008 which Maurice McCabe recorded - and if he had not recorded it, God knows where he would be, as I said yesterday - are there any issues emanating from that and has there been any investigation into how all of that came about? It seems to have led to the rather hostile and adversarial manner in which the senior counsel representing An Garda Síochána and the Commissioner approached the commission.
I thank the Deputy. The first thing I would like to do is put on the record of this House what the commission said about Sergeant McCabe. It stated:
Some people, wrongly and unfairly, cast aspersions on Sergeant McCabe’s motives; others were ambivalent about them. Sergeant McCabe acted out of genuine and legitimate concerns, and the commission unreservedly accepts his bona fides. Sergeant McCabe has shown courage, and performed a genuine public service at considerable personal cost. For this he is due the gratitude, not only of the general public, but also of An Garda Síochána. While some of his complaints have not been upheld by this commission, Sergeant McCabe is a man of integrity, whom the public can trust in the exercise of his duties. Assistant Commissioner Byrne told the commission that, “Sergeant McCabe is regarded as a highly efficient sergeant, competent”. This assessment is shared by the commission.
It is important for us to recall that in the context of the discussion here today. I want to remind the House of what the Garda Commissioner said when she was speaking about Sergeant McCabe and the commission. She said she accepted fully what was said in the commission investigation about him. That is the first point I want to make. We should be clear that the Commissioner absolutely accepts the findings of the investigation in regard to that, and is acting on the findings and the recommendations.
I did meet with the Garda Commissioner the day before yesterday. I was discussing a number of issues with her in regard to the inner city and gangland issues and the recommendations in the O'Higgins report. I understood at that point she had not yet issued the statement but she made some of the points that were subsequently in her statement in regard to her accepting the report and accepting Sergeant McCabe's bona fides, and that she never suggested malice was the motivation. I will obviously have ongoing discussions with her. I have no doubt she will seek to clarify as much as possible the points raised by Deputy Micheál Martin in her own interventions.
There are a number of places where those interventions will be made. I want to remind the House in the first instance that we now have in place, with the will of this House, an independent Policing Authority with an oversight role in regard to policing. I have forwarded the report to the Policing Authority and it has indicated publicly that it will be addressing and discussing the O'Higgins report with the Garda Commissioner. I think that is a very appropriate forum. One of the points that was made again and again in this House was that we should have a body with an oversight role. We will have a discussion in the House next week and the justice committee has also indicated it will take this forward.
Deputy Martin raised questions in several other areas, including the question of discipline in regard to the Mullingar incident.
This was one point I discussed with the Commissioner when I met her and, of course, whether An Garda Síochána would look at the commission's report with a view to seeing whether there were implications for discipline. The Commissioner informed me that the Garda would be looking at it from this perspective and with this lens and that it would be followed through by it. That is the answer to the Deputy's question on the particular incident.
The other point the Deputy made was on evidence and waiving a legal right. I am advised by the Attorney General that in making a distinction between briefing a legal team and the evidence it can be quite difficult to separate the two and that common sense would dictate that this is the case. Clearly, if the Commissioner saw fit to make a further comment and she was in a legal position to do so, it would be helpful in answering some of the points made by the Deputy. I have no doubt that within the legal constraints she will say as much as possible when she is questioned in the future on these issues.
There is enormous controversy about this issue, regardless of whether we or the Minister like it. I put it to her that there must be some significant intervention to deal with it comprehensively and transparently. Is it her intention to meet the chairperson of the Policing Authority to put it to the authority that it is important, in terms of accountability and transforming culture, that people with important points, allegations and assertions to make to improve performance ultimately will be protected? This is extraordinary when we read the transcripts as they are presented. I acknowledge that we may not be getting the full picture, but nonetheless they make fairly stark reading in terms of the attitude demonstrated. There was a suggestion yesterday that this was inquisitorial, but it is clear from the transcripts that in the initial phase it was adversarial in that there was almost an all-out, right through, attack on the credibility and motivation of Sergeant Maurice McCabe, the person making the allegation. It is important to note that we have moved from a position where the legal instructions and legal submissions were absolutely not to be discussed to one where now it is a matter of waiving legal privilege, which is a separate issue as regards being part of the Act. It should not have taken this long to have the matter cleared up and clarified. Will the Minister seek a meeting with the chairperson of the Policing Authority to have a comprehensive discussion with a view to working out a mechanism to deal comprehensively with this matter?
To answer the Deputy's question, we did authorise, develop and establish this new mechanism for accountability with the Policing Authority. It is an independent body, a point made by many Members of the House when we went through the legislation on it. It would not be right for me to try to prescribe the work of the authority, but I take the point made by the Deputy. I have already said I will refer the report to it. I have no difficulty with having a meeting. I am due to have a meeting with its chairperson and no doubt the fact that the report is being referred to her will form part of the discussion. I stress that the authority is an independent body. The Deputy recognises this. It gets on with its work, but it has indicated that it will discuss the report. I believe it is the right forum in which to do so. Having established an independent body we should allow it to get on with its work.
The Deputy is quoting and commenting extensively on what are, in fact, illegal transcripts. I take the point that they are in the public domain, but we still do not know their context in terms of where they came in the commission evidence, what preceded them and what followed them. In many ways, the publication of such illegal transcripts robs the Garda Commissioner of an opportunity to defend her good name and we must make the point that 94 other witnesses also gave evidence. Yesterday I made the point that protecting the integrity of the commission process was very important because in the future we want people to have confidence in commissions of investigation, the fact that they brief their legal teams and that their issues will be dealt with in a confidential way. The commission held its hearings in private and guaranteed confidentiality, but it now looks like we are rerunning part of the investigation. We are losing sight of the very broad questions in the commission of investigation which need analysis and follow-up. We must ensure they are acted on and that criminal investigations which will take place in the future will be of the standard the commission has stated they will need to be.
As we all know, the responsibility of the Opposition is to hold the Government to account. The Minister for Justice and Equality has a responsibility to hold the Garda Commissioner to account and is answerable to the Dáil. Sinn Féin wanted the Policing Authority to have more powers. It should be able to hold the Commissioner to account and no one Minister should have this responsibility. If the Minister checks the record, she will see that the Government blocked this; therefore, holding the Commissioner to account is her responsibility and she must be able to account to the Dáil. A series of allegations have been made about how Sergeant Maurice McCabe was treated after he had raised concerns about investigations of serious crimes in the Cavan and Monaghan division. In particular, it has emerged that two senior officers, apparently, claimed that Sergeant McCabe had admitted to them he was motivated by malice. This allegation was also, apparently, made by a senior counsel acting for the Commissioner. I will put to the Minister the exact same questions I put to her yesterday. Answers to these questions are the very minimum the Dáil, citizens of the State, serving members of An Garda Síochána and, in particular, victims of these serious crimes deserve. There is no legal barrier to the Minister answering them. In fact, she is obliged to do so. It is very straightforward. Yesterday, she met the Commissioner in the north inner city, where last night I attended the community vigil. Did she speak to the Commissioner about these issues? Has she asked what instructions she gave to her legal team about Sergeant McCabe? Has she asked whether two officers claimed that he had admitted to them that he had acted with malice? We are entitled to answers to these questions. Whatever the Minister might want to say about the detail and the context, we, as Teachtaí Dála, are obliged to hold her to account. She is obliged to answer these very straightforward questions.
I have already made it very clear that we will have a number of opportunities to have further and detailed discussions on the commission of investigation. There is the independent Policing Authority. I reject the Deputy's assertion about the powers of that body. It has an oversight role in relation to An Garda Síochána which I have no doubt it will fulfil very well. It has already held one public meeting and will have others. It can make an independent decision on how it should handle the report. There is much talk about the politicisation of policing. We have an independent body which can discuss this issue. It has the authority and we should allow it to get on with its work. We will also have a further detailed debate in the House on the commission's report.
Yesterday I outlined the legal position in commenting on particular transcripts. I have had a conversation with the Garda Commissioner about the recommendations made in the report. I have had a discussion about how they need to be implemented. She has informed me about the attitude and the wish of An Garda Síochána to deal effectively and properly with Garda whistleblowers and that it is implementing in full the legislation on protected disclosures. As I stated, with regard to the details of the transcripts, I do not think it would be appropriate for me to respond on partial transcripts, but it is important for me to have a conversation with the Commissioner and ongoing discussions with An Garda Síochána on the implementation of the report and the many issues addressed in it which need to be deal with.
I make the point that the report concerns the period 2007 to 2008. These complaints were first brought to the then Minister for Justice, Equality and Law Reform in 2009, who at that point appropriately referred them back to the then Commissioner. Many of the issues that are dealt with in that report have now begun to be implemented already by An Garda Síochána-----
Answer the question.
-----and that is what we should be debating here and what needs discussion. We have a relatively new Commissioner who was recruited by open competition and who is dealing with many complex criminal justice issues every day of the week, including the gangland crime that has erupted in recent times, and we should give her our support to continue the important work that she is doing.
The Tánaiste should answer the question.
Deputy Barry, please.
That is not the issue. This is terrible.
Sinn Féin argued for an independent Garda authority, for which the previous Government, of which the Tánaiste was a member, ridiculed us. We argued for it to be established along the lines of the Patten Commission. It was only when the series of scandals erupted that she eventually and reluctantly opted for the model she now has. I wish the commission well but I return to my original questions. How do we sort this out? How does a member of the Opposition get this Government to answer an entirely valid question? I did not ask the Tánaiste to deal with the transcripts. I did not ask her to deal with the detail of this. I simply asked her, as the line Minister, to ask the Garda Commissioner to tell her what instructions she gave to her legal team about Sergeant McCabe and whether two officers had claimed that he admitted to them that he acted with malice. That is very straightforward. There is no legal barrier whatsoever to the Commissioner answering these questions.
This Government - at least the last Government - made this mistake many times, namely, a marked refusal to treat the Dáil with the respect that it deserves, and on numerous occasions information was withheld. We have to tune into RTE and read the newspapers to find out what is happening, and the issues we are dealing with here-----
Could the Deputy conclude now, please?
Yes. Ní bheidh mé ró-fhada, a Cheann Comhairle. The issues we are dealing with here, as the Tánaiste knows, are not trivial, they go to the core of confidence in our policing and justice systems, and all of us have a duty to build confidence in these systems.
This is also about the Tánaiste's solemn responsibilities as part of the Government. She says she is prohibited from answering my questions. That is nonsense. I implore her, as a matter of urgency, to go from this Chamber, speak to the Commissioner, ask these questions and report back to the Dáil without further delay.
I am very aware of my duties to this House. Let me remind Deputy Adams and this House that the reason we have a commission of investigation is that a range of allegations, statements, etc., were made about a range of issues because of what I would call the pioneering work that Sergeant McCabe did. Let us also remind ourselves, however, that a commission of investigation has interviewed all 94 of those witnesses, operated under statute, brought in witnesses, cross-examined them and brought in legal teams. Some of the allegations that were made two years ago have been found to be not correct-----
A Deputy
Very few.
It is therefore very important that we do not try to reinvent the wheel regarding some of the issues that were dealt with very thoroughly by the commission of investigation. As I have said, it found what it found regarding Sergeant McCabe, which I put into the record this morning. It found, for example, that there was no evidence of corruption against the former Commissioner or the five senior gardaí. It is important for us to consider the commission of investigation, read it and see that certain statements that were made by a number of people at that time were found not to be correct. We must therefore be careful not to do the same thing again based on-----
I am not asking the Tánaiste to do that.
Let me make the point-----
The Tánaiste is doing the exact same thing again: she is not answering the question.
Please, Deputy Doherty.
Let me make the point that the same thing can be done by people who make allegations as well. We have had a commission of investigation for two years now led by Mr. Justice Kevin O'Higgins, and a thorough and thoughtful report. It behoves us all to consider the report in its entirety, and I will have-----
Could the Tánaiste conclude, please?
It behoves the Tánaiste to answer the question. Where is Dáil reform now?
I will have ongoing discussions-----
Would the Ceann Comhairle ask the Tánaiste to answer the question?
The Deputy is very well aware that that power does not rest with the Ceann Comhairle.
It certainly does. All he has to do is to make the request.
I will have ongoing conversations with the Commissioner, and if it is feasible and legal for the Commissioner to put further information in the public arena, I have no doubt that she will do that.
We want the Minister to do it.
Those of us with a long enough memory of previous occasions in this House will recall an occasion when someone who is sitting where the Tánaiste is sitting now was found to have had a sheet of paper in his hand when he was under some pressure while answering questions. It was found to have read, "If pursued on this matter, keep repeating exactly the above".
Is that a confession?
First-----
(Interruptions).
We know Deputy Adams never confesses to anything.
Order, please. Deputy Burton has the floor. Deputy Burton, please, without interruption.
He has an aversion to ever talking with, let us say, total honesty about all sorts of things in his life.
Deputy Burton is a paragon of honesty.
I welcome the fact that the Tánaiste acknowledges that the independent policing authority can examine the matter. She seemed to be uncertain about that when questions arose previously. The independent policing authority has both a right and a duty to examine the matter, and I am glad that the Tánaiste acknowledges that should happen because it is appropriate.
What we want to know, however, and I think what the public wants to know, is what the Tánaiste's plan is regarding, as she said, a very complex and a very wide-ranging report. The Garda Commissioner has a duty to report to her, and the House wants to know about matters which have now gone into the public domain. We had a discussion about section 11 of the Act. We were not talking about section 11 of the Act. We were essentially talking about the legal strategies which the legal representatives for the Commissioner undertook. We want to explore that and get answers to some of the material and some of the facts, suggestions or claims surrounding these legal strategies that have now gone into the public domain-----
Could Deputy Burton conclude, please?
Is the Tánaiste prepared to give us that information and explain what happened regarding the legal strategy being pursued on behalf of the Commissioner that is not subject to privilege? It is now in the public domain through the media. Can she explain that to us and explain what her reaction has been to that, whether she has taken that up with the Commissioner and whether she has satisfied herself in identifying and having had explained to her what exactly this legal strategy was?
Let me make a number of points regarding the Deputy's question. The Garda Commissioner is as entitled to confidentiality in her dealings with her lawyers as is any citizen, litigant or participant at a trial, tribunal or commission of investigation. That is the first point I would make. I said yesterday that it is-----
A Deputy
The Tánaiste is in trouble if she is relying on that.
It is going down a dangerous path to suggest that instructions be put in the public domain. Deputies around the House would understand that. If we were to ask that the instructions that Maurice McCabe gave to his senior counsel or those that various gardaí gave or that any Deputy appearing before a commission gave should be put in the public arena-----
Hear, hear.
-----how would Deputies feel if that were the situation?
We never asked the Minister that.
That is a question-----
Would Deputy Adams publish the legal advice that he gave to his solicitor?
Please.
The Deputy never asked that.
Would Deputy Adams publish all the legal advice?
The Deputy should let the Minister answer.
I want to make the point - it is worth the House reflecting on this - that when one is giving instructions or having discussions with lawyers, a litigant will say various things in regard to those instructions. They are within the privilege of that relationship and that discussion. That is clearly understood. It is a basic tenet of justice.
I stated also that it is imprudent and a dangerous precedent for such discussions to be thrown into the public domain as it will affect the reputations of persons - I already made the point about reputation - as they have no comeback and the person who made allegations in giving instructions would have no comeback either. We have to reflect carefully on what is being asked here. The ability of persons to engage with a commission of investigation could be seriously compromised. One should think about what is being asked. What we are asking of the Commissioner in regard to this commission of investigation is that the private briefings that one has with lawyers or solicitors should be put into the public domain.
It is illegal for me, for example, to have access to those transcripts. I do not have access to them - neither does Deputy Micheál Martin or Deputy Burton. Deputy Burton does not know the context of them. That is important.
We do.
Perhaps Deputy Micheál Martin does.
No, I do not. It is just that, as an ol' Corkonian, I can read the Irish Examiner.
I want to make this point-----
A Deputy
My Daddy.
He is looking askance at me.
-----that it must be borne in mind at all times that the judge reached his conclusions and published-----
Deputy Micheál Martin will get a vote for that anyway.
He published his report having heard all of the evidence. The strategy the Deputy suggests runs the risk of circumventing the Commissions of Investigation Act 2004. As I have said, I have no knowledge of the transcripts, whether they are selective or not, and whether they present a true, fair and reasonable account of what happened at the commission of investigation proceedings.
I would repeat that what is certainly the case is they are not reflected in the final report and what Deputies are asking me to do is to second guess the commission of investigation.
All right.
I cannot do that because there was a full hearing over a long period where all of the evidence was heard-----
The Minister should call the Commissioner to account.
-----but having said what I have said in regard to those issues, of course the Commissioner will want to clarify as much as she can, as I will based on the information I have at any given point, to reassure the House that whistleblowers are now dealt with properly. The former Minister for Public Expenditure and Reform, Deputy Howlin, brought forward the Protected Disclosures Act 2014 which now means that, instead of being dealt with within An Garda Síochána, a whistleblower has access to an independent investigation if he or she has complaints. I have discussed-----
I thank the Tánaiste.
I will conclude by saying this. I have discussed with the Garda Commissioner how whistleblowers are dealt with in An Garda Síochána now. I have repeatedly discussed that with her and I have been reassured that the legislation is being fully implemented and that there are a range of appropriate supports. At another time I can put on record the supports that were made available to Sergeant McCabe during the period when he was a whistleblower in An Garda Síochána.
I want to be helpful to the Tánaiste and Minister for Justice and Equality because I want to help the public. We all are clear that we want an efficient, professional modernised police force that can apprehend criminals who are doing a great deal of damage in this State. Part of this investigation was about serious matters that happened regarding crimes committed and which were part of the subject of the investigation.
I repeat what I want to know now. It is a simple request. What is the Tánaiste's plan to give the House information which, as has been stated earlier, whether one likes it or not, is now in the public domain relating to the questions asked and put, apparently, as far as we know, according to accurate records, by the lawyers?
Let me stress that no one here has suggested that any of the limitations put on witnesses by section 11 about information being published is in any way being questioned. We are talking about the legal strategies and about the fact that the suggestion and the claims have been made that a legal strategy was being undertaken which would seek to undermine matters regarding credibility and even integrity.
I thank Deputy Burton. Will the Deputy conclude?
We have seen today, for instance, that the word "malice" was not, in fact, used by the Garda authorities. The suggestion in what is in the media today is that the word may have been used by the judge himself as part of some discussion or adversarial process in the questioning.
I thank Deputy Burton.
What I want to ask the Tánaiste is, will she explain, and has she spoken to the Commissioner about, the legal strategy-stratagems that were undertaken, and will she share that or give us an indication of that in this House because the end objective is shared by everybody? We want to reform the Garda.
Can Deputy Burton conclude?
Can the Tánaiste answer the question?
The Tánaiste to conclude.
Of course I will share as far as possible what I can in regard to the question Deputy Burton has asked, but let me make this point. Deputy Burton is incorrect to say that full information is in the public domain. It is not in the public domain. There is some information, based on illegal action. The Deputy is asking me to comment on what has been an illegal act that has produced these partial transcripts. The only person who has the full knowledge of all that was presented in terms of evidence at the commission of investigation is Mr. Justice O'Higgins.
I intend to take the report of the commission with its many recommendations. I intend to ensure the continuation of all of the measures in the programme of reform which the previous Government started. These include the new policing authority, the protected disclosures, the strengthening of GSOC and the increased resources to An Garda Síochána so that it can deal more effectively with the issues raised in the report. In addition there is the ICT investment of €200 million and the improvements to the PULSE system, and any other points made in the report which will lead to the kind of policing service that Deputy Burton says citizens want to see. I agree with Deputy Burton that it should be the key goal of all of us in this House to have a policing service we can be proud of. Clearly, there are deficiencies identified in the report. It is sad and disheartening to see how victims were dealt with. We have a new victims directive. We have legislation coming forward. That is where the focus needs to be.
With regard to the questions about the current controversy about transcripts, of course I will put the maximum information that I can access on the floor of this House and when we have the discussion here next week.