Dáil Éireann díospóireacht -
Wednesday, 15 Feb 2017

Vol. 939 No. 1

Leaders' Questions

Deputy Micheál Martin

Our overriding consideration is to vindicate the integrity of Maurice McCabe and to have a comprehensive statutory tribunal of inquiry into allegations that there was a concerted smear campaign against him. That said, truth in government matters. There has been a drip-drip of information and misinformation and a lack of candid presentation of what exactly happened in the lead up to the Cabinet meeting to discuss the formation of the commission of investigation and, indeed, the revelations of the existence of a Tusla file containing false allegations against Maurice McCabe.

I was taken by the Taoiseach's interview this week where he said the Minister for Children and Youth Affairs, Deputy Katherine Zappone, told him she intended to meet Sergeant McCabe in a private capacity and that was all he knew. He apologised for that yesterday and said it did not happen. The Taoiseach said her adviser spoke to his adviser on 24 January in accordance with Deputy Zappone's speech to the Dáil last night, which was candid and probably a model others should follow. She said:

My adviser met an adviser from the Taoiseach's office on Tuesday, 24 January, the day before I was due to meet Sergeant and Mrs. McCabe, and told him about the upcoming meeting. She told him that it was in respect of a complaint that the McCabes had about Tusla. Before meeting the McCabes, I told the Tánaiste and Minister for Justice and Equality that I was meeting Sergeant and Mrs. McCabe. As I stated when I spoke to the media yesterday, I also spoke with the Taoiseach prior to the Cabinet meeting last week. Just to be clear, this was after my meeting with the McCabes. I told him that I had met the McCabes and that we had discussed false allegations of sexual abuse made against Sergeant McCabe to Tusla. The Taoiseach said that this would be covered by the commission of investigation, which is what we were calling it at the time. I did not go into the detail of any of the allegations that I was aware of, but I did indicate to him that this was the nature of the conversation.

When the Taoiseach rang me the night before yesterday, he indicated that he did not know about the existence of a Tusla file. He said that to me. He said he did not know about the details contained in the file. I am beginning to accept that the Taoiseach did not know the exact graphic details of the file, but it seems clear that he knew about the existence of a Tusla file. How else did he know or could he have known that the commission of investigation would cover the allegations if he knew nothing about the allegations themselves? He told me that Deputy Zappone said there were allegations against Maurice McCabe although he did not mention Tusla. The Taoiseach told me he asked if they were true or false and the Minister told him they were false. I would like to know how the Taoiseach knew the commission would cover it if he did not know the detail of any allegations.

Can the Taoiseach or someone else confirm to the House whether Department of Justice and Equality officials knew about the existence of the Tusla file and the allegations contained in it? Was there an attempt to keep the protected disclosures report and its conclusions separate from the existence of the Tusla file and the allegations in that? Was the Cabinet blindsided as a result of the desire on behalf of somebody to keep the two separate at the cusp of the establishment of the commission of investigation?

The Taoiseach

I thank Deputy Micheál Martin. I do not know the answer to the last question he asked, as to whether the Department of Justice and Equality knew of the existence of a Tusla file.

Deputy Micheál Martin

Can the Taoiseach find out because the Minister for Justice and Equality has-----

The Taoiseach

The Minister for Justice and Equality is looking at the question of terms of reference for the inquiry, and whether it is possible to extend it to cater for other whistleblowers or whatever.

In respect of the Deputy's question, he has outlined the sequence of events. On 24 January, one of the officials in the office of the Minister, Deputy Zappone, told my office that she intended to meet Sergeant McCabe and that was relayed to me. On 7 February, in a brief informal conversation as the Cabinet meeting of that day was about to commence, the Minister, Deputy Zappone, mentioned to me that she had met Sergeant McCabe about false allegations of sexual abuse that had been made about him to Tusla. She did not go into the details of that conversation with Sergeant and Mrs McCabe or the gross mishandling of the issue with Tusla.

It is absolutely clear to me that allegations of a false nature would be fully covered by Mr. Justice O'Neill's draft terms of reference as allegations of criminal misconduct against Sergeant McCabe and are at the core of the proposed commission's remit. That was confirmed by Mr. Justice Charleton, who said all of the allegations revealed in the "Prime Time" programme are, in fact, covered by the original draft terms of reference. Paragraph (b) refers to the fact the protected disclosure sent in by Superintendent Taylor refers directly to an allegation of criminal misconduct made against Sergeant McCabe and this was the root cause of his agenda.

Clearly, we were looking at the terms of reference, we had examined the terms of reference and they were produced and presented by Mr. Justice O'Neill. Central to that was an allegation of criminal misconduct made against Sergeant McCabe. Obviously, the discussion between the Minister and Sergeant McCabe dealt with that area. The Minister did not make me aware of the existence of a Tusla file and did not comment in any detail on the conversation she had with Sergeant McCabe.

Deputy Micheál Martin

How did the Taoiseach know then that the commission would cover it? Mr. Justice Charleton's conclusion is retrospective. The Taoiseach did not know the detail of the allegations in the Tusla file at the time. Therefore, it begs the question as to how anybody in the Cabinet knew it would cover the Tusla file and the allegations contained within it. The Minister, Deputy Zappone, said she would have appreciated if there was advance circulation of memorandums.

I deduced from this that the protected disclosure memorandum was never circulated to other Cabinet Ministers in advance. The Taoiseach can correct me if I am wrong. Therefore, it begs the question as to how anybody knew. It seems an extraordinary display of Cabinet telepathy at work that each individual Minister deduced individually that this was somehow going to cover something that nobody knew anything about other than, allegedly, the Minister, Deputy Zappone, in terms of the detail and content of the allegations contained in the Tusla file. As we now know, they were false allegations against Maurice McCabe.

A question was asked yesterday and a very straightforward answer can come from the Department of Justice and Equality and the Minister for Justice and Equality. Did the Secretary General of the Department of Justice and Equality or senior officials in the Department know about the existence of the Tusla file and the allegations within it before they circulated or sent a memorandum, via the Minister, on the protected disclosure to the Cabinet? This is very important. We should get a clear "Yes" or "No" answer on whether they did because the truth will come out at some stage. We need a candid explanation in order to explain the background.

The Taoiseach

I do not know the answer to that question. In the very brief conversation I had with the Minister, Deputy Zappone, she pointed out that she had met Sergeant McCabe. I corrected the record yesterday on that and acknowledge that I was mistaken in my account of the sequence of contacts with the Minister, Deputy Zappone. She spoke to me just before the Cabinet meeting began. She did say that she met Sergeant McCabe and discussed questions of false allegations of a sexual nature made to Tusla against him.

The Cabinet was just about to consider the terms of reference which I had read. Clearly, the central issue is whether a smear campaign was directed by senior gardaí against Sergeant McCabe. The question is referred to directly in the case of criminal misconduct allegations made against Sergeant McCabe in the terms of reference drafted by Mr. Justice O'Neill which Mr. Justice Charleton later said fully covered the implications of that and all of the issues that were portrayed in the "Prime Time" programme.

Deputy Gerry Adams

Sinn Féin has tabled a motion of no confidence in the Government and we call on all Teachtaí to support it. Some in Fianna Fáil, in particular, said we should not have tabled the motion and claim that it will prevent the McCabe family from getting answers to their very legitimate questions. That is nonsense. It is the behaviour of the current and previous Governments that prevent this.

For his part, the Taoiseach has put forward a motion of confidence which states: "Dáil Éireann reaffirms its confidence in the Government". That motion has only one signature, that of the Taoiseach. How could that be? Could the Taoiseach not get the support of anyone else in Fine Gael or the so-called Independents in government? Could he not get a dig out from his friends and partners in Fianna Fáil?

Deputy Billy Kelleher was gushing in his admiration of the Government today. He said he wanted to ensure that the Government survives. Why would any sensible and caring person want an incoherent, incompetent and shambolic Government to survive? Does Fianna Fáil not know what is happening in the health service or about the emergency in housing and homelessness? Does Fianna Fáil think the Government is fit for the challenges presented by Brexit? Does it forget that at the heart of the current controversy is an alleged criminal conspiracy by senior gardaí to destroy the character of a decent man doing his duty?

Yesterday, the Taoiseach told me it was irrelevant when he became aware of the false accusations against Sergeant McCabe. It is totally relevant. The Taoiseach keeps changing his story because he knows that. It seems to me that he has known for a very long time. The Taoiseach will clearly not want to answer my question and may wish to attack me personally. He can do so again and again, as part of his mock feigned anger, but that will not get anyone, in particular the McCabe family, any answers.

Having previously denied it, the Taoiseach now admits that the Minister, Deputy Zappone, told him that false accusations made against Maurice McCabe were referred to Tusla. He said he told her that would be covered by the terms of the commission of investigation. The terms of reference were drawn up by Mr. Justice O'Neill, who read the two protected disclosures. Unless the Taoiseach had seen the disclosures, he would have had no way of knowing that the false accusations brought to him by the Minister, Deputy Zappone, were the false accusations contained in the protected disclosure. Was the Taoiseach aware of the content of these disclosures?

The Taoiseach

No, I was not. I did not see them, I was not entitled legally to inquire about them and I did not know the detail of what was enclosed in the two protected disclosures and nor did anyone else at the Cabinet table, except the Minister for Justice and Equality, who received them. I did know that in the terms of reference the question of allegations of criminal misconduct were central to the setting up of the inquiry and its work, as was the commission of investigation proposed at the time.

Deputy Gerry Adams

"Criminal misconduct" could mean anything at all. The Taoiseach stated that he did not know the content of those protected disclosures, but he has to say that because it would be unlawful for him to have knowledge of them. The terms of reference are clear and would not have covered the allegations brought to the Taoiseach by the Minister, Deputy Zappone, unless they were the same allegations made by Superintendent David Taylor in his protected disclosure. How could the Taoiseach have known that they were the same allegations when he gave such an assurance to the Minister, Deputy Zappone, unless he had knowledge of the protected disclosures? Let me remind the Taoiseach that this was before the judge confirmed they were the same allegations. The Taoiseach may wish to tell me that the question is irrelevant or, as I said, he may wish to attack me again. However, this question is totally and absolutely relevant. That is why the Taoiseach's motion of confidence in the Government should be rejected by the Dáil and why he should give us a definitive, definite and conclusive answer to this totally relevant question. When did he first become aware of the false allegation against Maurice McCabe and, on the related issue, did he see the protected disclosure?

The Taoiseach

I confirm to Deputy Adams that I did not see the protected disclosures. I did not read them. By law, I am prevented from even asking questions about the protected disclosures-----

Deputy Gerry Adams

Was the Taoiseach briefed on them?

The Taoiseach

-----as is the Minister for Justice and Equality prevented from speaking about them. I was entitled to read and assess and analyse the terms of reference set out by Mr. Justice Iarfhlaith O'Neill, who had contact with all of the main personnel, I am sure, in respect of the two protected disclosures that he received. In my very brief conversation with the Minister, Deputy Zappone, she quite rightly pointed out to me that she had met Sergeant McCabe and that the subject of her conversation with him was false allegations of a sexual nature made to Tusla about him. These terms of reference speak specifically about an allegation of criminal misconduct made against Sergeant McCabe. I was clear in my mind that it covered and would cover false allegations of sexual misconduct. This was confirmed by the judge of the Supreme Court who was to take charge of the then proposed private commission of investigation and it also included all of the issues on the RTE programme.

Deputy Gerry Adams

I did not ask if the Taoiseach read them. I asked if he was aware of them. He did not answer that question.

An Ceann Comhairle

I call Deputy Mattie McGrath.

Deputy Mattie McGrath

I was going to raise the McCabe saga today, but there are so many other important issues and I will raise one of them. I raise the serious situation of the State once again failing children with disabilities. Today I will not speak about hospital waiting lists, Tusla, the children's hospital or any of the many other failures for those with disabilities, but about a child's constitutional right to education. In Clonmel today, parents of at least 11 young children with autism do not have a school to send their child to in September. This number is the minimum number and refers to a group of children that will leave an excellent autism spectrum disorder, ASD, unit in St. Mary's School in Irishtown in Clonmel that was set up by former principal, Mr. Gerry Ryan. These children have nowhere to go and this number does not include the many other children who have been recently diagnosed with autism and are struggling in mainstream schools with insufficient supports. They also require the support of an ASD unit. Currently Clonmel, the largest inland town in the country, has no ASD unit at primary level, so these five year olds, who are legally obliged to attend school, have nowhere to go in September. This is not just an issue for Clonmel. It is an issue for children in Carrick-on-Suir, Tipperary town, Clogheen and Fethard. For that matter, it is an issue for children throughout the country. We are at a crisis point and the State and the Department of Education and Skills have no concrete plans to ensure that these children will have access to education come September.

Last week I met, together with a group of concerned parents, two special educational needs officers, SENOs, from the National Council for Special Education, NCSE. They admitted that we are at crisis point and that their hands are tied. They cannot force schools to open a unit, yet currently no primary school in Clonmel is willing or able, for a variety of reasons, to open an ASD unit and people cannot get a school placement. The reality is that it could be 30 km away if they can get one as many of the excellent units in surrounding areas are already full to capacity and have huge waiting lists.

In response to a parliamentary question tabled this week, the Minister for Education and Skills informed me that he had no plans to change the situation to require schools by legislation to open an ASD unit where a need is identified and that he hoped schools would open such units voluntarily. Schools are doing their best, but they will not do that, so we will have to change the legislation. I hate the word "coerce" but we have to try a carrot and a stick. The situation in Clonmel and many other areas is that schools are not planning to open any units for a variety of reasons. We hear so much from Government about changing the ethos of schools, as if it is the only issue surrounding children getting access to education, yet it continues to ignore the most serious issues, where children with special needs are being discriminated against because they cannot access education, as is their right.

These children and parents do not have big organised lobby groups and the power of the media behind them. They have to fight for everything and are sick and tired of fighting the State for the services to which they are entitled and so badly need. These children are no different from those of the Taoiseach or from my children. What will the Government do to ensure that these students will have a place to attend this September, as required by law?

The Taoiseach

I thank Deputy Mattie McGrath for his question. He covered quite a number of schools in Tipperary. It is clear that this is an important issue for parents and guardians of children with special needs. The Minister for Education and Skills, Deputy Richard Bruton, has made quite a number of changes in respect of the way in which we are examining this matter. For instance, last year more than €1.5 billion was spent on special needs education for children throughout the country, which is a significant proportion of the education budget for this year. I say to Deputy McGrath and to the parents that the local SENO will assist parents in finding placements for their children. Further, the number of ASD classes has increased from more than 500 to more than 1,000 to meet the growing demand since 2011. The Minister of Education and Skills is very much aware of the issues and the Department will continue in its efforts. The Education (Admission to Schools) Bill 2016 allows the National Council for Special Education to oblige a school to accept a student with special needs. That is an important matter for the Deputy to discuss with parents. The Bill is currently before the Dáil and a further extension of the power will be considered when the Bill goes to Committee Stage.

Deputy Mattie McGrath has some positive news for parents of children with special needs and I am sure the Minister will regard the Deputy's comments as being a priority for the area.

Deputy Mattie McGrath

I thank the Taoiseach and the Minister for Education and Skills, Deputy Richard Burton, but what people with children with autism or an ill or sick child with special needs do not want to hear is that €1.5 billion is being allowed for special needs education. What they want is a place for their child who they love and cherish. We all love these very special children. The Taoiseach stated that the special educational needs officers will help. They are doing their best but they cannot coerce the schools or make them take these children. This is an important issue.

The Taoiseach mentioned the Education (Admission to Schools) Bill, which we have examined, and I hope the Minister will engage positively with the tabled amendments to try to strengthen the Bill so that schools will be obliged to take children who have received a diagnosis. Many parents paid huge sums of money to get a private diagnosis because they were waiting in the system for years and schools miss the most vital areas. We all know early intervention and diagnosis are vital. I appeal to the Taoiseach and his Cabinet, particularly the Minister for Education and Skills, to meet these people. We have tabled some amendments and I appeal to the Minister to accept them and not to vote them down. This is a big problem not only in Clonmel and Tipperary but throughout the country. Schools for some reason are not engaging. They have many good reasons and I am not saying they should but we must make it more necessary and oblige them to take children with this diagnosis. These children cannot go to pre-school and end up with no national schooling. It beggars belief.

The Taoiseach

That is precisely why the Minister has made changes and the schools admissions Bill is before the Dáil. The powers under this Bill will allow for the National Council for Special Education to require schools to accept a pupil who has special needs.

Deputy Mattie McGrath

We do not have an ASD unit.

The Taoiseach

The Bill is before the Dáil and the issue of extending this power will be considered further when it goes before the committee. I hope it will be able to make its way through the Oireachtas as quickly as possible. While this is an issue all over the country, the number of classes has increased from 500 to more than 1,000 since 2011. Progress is being made and I hope the parents of children in Tipperary and every other county will see the benefit of that in due course. We cannot do everything overnight but hopefully the Bill, when it is passed and becomes law, will add to the opportunity for parents who have children with special needs to be taken into schools where special educational needs organisers, SENOs, will work with them..

Deputy Eamon Ryan

I would love to be able to ask the Taoiseach why Ireland has just been referred to the European Court of Justice for a breach of the water framework directive. I would love to ask him about the national planning framework, which is, as the Minister for Housing, Planning, Community and Local Government, Deputy Simon Coveney, stated, the most important thing that can be done in the lifetime of this Government. However, I cannot ask these questions because I must ask questions about the Maurice McCabe case, which goes to the heart of whether the Government can function and whether we have trust in it. If something can be done to one, it means it can be done to all. This goes to the heart of confidence in our democratic republic and constitutional system.

In that regard, rather than concentrating on who said what to whom, we need to concentrate on specific issues to ensure this does not happen again. I understand a meeting of justice spokespersons to discuss the framing of the tribunal of inquiry's terms of reference has been postponed. Will the Taoiseach provide a timeline for reaching agreement in the House on the terms of reference? He stated the Tánaiste and Minister for Justice and Equality is considering whether other whistleblowers should be included in the tribunal of inquiry. What is the Taoiseach's opinion on whether the terms of reference should be extended to include other whistleblowers who are alleged to have suffered the same type of smear campaign?

Does the Taoiseach believe the tribunal of inquiry should be fully transparent? We all agree with Maurice McCabe that we should not return to the O'Higgins version where an inquiry is carried out in private in an adversarial manner. Can we make the tribunal of inquiry fully transparent by broadcasting proceedings on the web, on television or by other means? If so, how will the protection of journalistic sources be protected given that, at the heart of this story, we will have to arrive at an understanding as to who contacted whom among the Garda, the journalistic profession and Members of the House? Deputy McGuinness inferred last night that everyone knew, including the dogs on the street. That is not the case. We need to find out the truth in terms of who knew and who was telling whom. The cornerstone of this case was a smear campaign and we need to work to find out who contacted whom to create that smear campaign.

I do not know from where Deputy Mick Wallace got his sources but he read out a document in which he set out that such-and-such a garda texted someone else and another individual e-mailed someone else. This is the level of forensic inquiry we will need. If the tribunal of inquiry is to be transparent, as it should be, how will we agree terms of reference to provide for transparency and allow all our correspondence, mobile telephone and e-mail records to be made accessible? This is as much an issue for the journalistic profession as for Members.

I am concerned that it may be difficult to complete this process this week. Part of the problem is that we constantly rush through stuff without thinking it through or working it out properly. Will we be able to reach agreement this week? Will the Taoiseach provide an approximate timeline setting out how long the tribunal of inquiry will take? We must avoid the fate of previous tribunals which lasted for years and cost hundreds of millions of euro.

The Taoiseach

I thank Deputy Eamon Ryan for his question. This is about trust and confidence in government and the institutions of the State. More so, it is about the central issue of determining the answer to the question as to whether there was a deliberate smear campaign organised by senior gardaí against Sergeant Maurice McCabe and, as a consequence, his family.

As for a timeline, I hope we will be in a position to have the spokespersons on justice sign off on what could be the terms of reference today. We could then have a Government meeting on them tomorrow and have them discussed in the House, although it may not be possible to do this.

The Deputy asked my opinion in respect of extending the tribunal for other whistleblowers. As the protected disclosures centrally involved the two senior police officers in the State, Mr. Justice O'Neill recommended a commission of investigation arising from these two protected disclosures. While this will be a matter for the judge who conducts the tribunal of inquiry, it would be appropriate to provide a facility whereby the inquiry might be extended to other whistleblowers if the judge saw fit to do so. Ms Justice Mary Ellen Ring is restructuring the Garda Síochána Ombudsman Commission, GSOC, to deal, in a much more trustworthy and I hope professional manner, with complaints made by members of the Garda and others and protected disclosures or other information that may come that way.

I expect that the question of protection of sources is central here. At paragraph (g) of its draft terms of reference, the proposed commission of investigation was directed to "investigate whether Commissioner O’Sullivan, using briefing material prepared in Garda Headquarters, planned and orchestrated broadcasts on RTE on the 9th of May 2016, purporting to be a leaked account of the unpublished O’Higgins Commission Report, in which Sgt McCabe was branded a liar and irresponsible." This is an issue that will require some consideration by the judge in charge. Also, it is a matter for whomever is appointed as a sole member as to how the inquiry should be conducted in public. A tribunal of inquiry will have the support of the McCabe family if it is held in public and, therefore, will be fully transparent and accountable. The matter of whether it is broadcast on the worldwide web or whatever would be for the judge to decide.

I hope we can get agreement from everybody that it is absolutely necessary that the commission of inquiry be set up under the tribunals of inquiry Act. Every day that passes denies the opportunity to have the central question answered as to whether there was an orchestrated smear campaign against Sergeant Maurice McCabe. That is the function and purpose of the tribunal of inquiry and I hope all Members will be in a position to sign off on it. If necessary, the Government can meet tomorrow and we can have the debate in the House and its decision and that of the Seanad on the matter. It is in everybody's interests that this happen as quickly as possible.

Deputy Eamon Ryan

It would be interesting to hear the views of every party on whether other gardaí who have suffered in this way should be included in the terms of reference of the tribunal of inquiry. While this is a tough call, if the Dáil were to decide collectively such cases should be included, it would be unwise to leave the matter to the judge. It may be better for the House to give direction on the terms of reference. As we did not have the meeting this morning, I am uncertain as to whether this could be done in time for a meeting of the Cabinet tomorrow.

The wider question of trust in government is at the centre of this issue. I recall difficult times in government. When a ministerial adviser indicates to an adviser to the Taoiseach in advance of a Cabinet meeting that a matter is being looked at, it sets off red lights. If officials or advisers to the Minister for Children and Youth Affairs informed the Taoiseach's officials that the Minister was setting up a meeting with Maurice McCabe, I cannot understand how the matter did not become a subject for discussion at the subsequent Cabinet meeting. The way the system was set up in the days when Deputy Brendan Howlin was a Minister was that advisers iron out or signal difficulties in advance. Under this system, all the red lights would go off in any functioning Government to indicate that this issue would have to be discussed at Cabinet.

While I do not wish to get into who said what and where, is there a difference between the current Cabinet and previous Cabinets of which the Taoiseach was a member? Is the difficulty that we have a minority Government which includes a number of different Independents? Is this a different experience from the experience of having two parties in government? Is that the reason the Cabinet is not having proper debates, this issue was not tackled by the Cabinet and the Dáil is in disarray as a result?

The Taoiseach

No, it is not. In respect of the direction in the terms of reference, the Minister is examining this matter to see if it is possible to have a facility whereby an expansion of the number of cases that might come before the tribunal of inquiry can be considered.

The judge nominated to head up the commission of investigation is a serving member of the Supreme Court. He has set out a timeline for consideration of the commission of investigation. It will be a matter for the judge if he wishes to take on this responsibility and the timeline required to do so.

In regard to the workings of the Government, as the Deputy will be aware the Government has a range of challenges to consider every week. Members of the Independent Alliance work well with Government. It is true that one is always learning lessons in terms of how business should be conducted but the discussions took place at Cabinet because the protected disclosures do not allow for a discussion of the detail. The Minister, Deputy Zappone, made it clear yesterday that following her discussion with Sergeant McCabe she did not want to put in the public domain the graphic details of the discussion she had with him. As I pointed out earlier, the false allegations made to Tusla about Sergeant McCabe were clearly covered in the terms of reference about criminal misconduct.