Dáil Éireann díospóireacht -
Wednesday, 29 Nov 2017

Vol. 962 No. 4

Disclosures Tribunal: Motion [Private Members]

Deputy Donnchadh Ó Laoghaire

I move:

That Dáil Éireann believes that a revision of the terms of reference of the Tribunal of Inquiry into protected disclosures made under the Protected Disclosures Act 2014 and certain other matters - the Charleton tribunal - is required and should take place to take account of the recent revelations regarding the Department of Justice and Equality, Ministers for Justice and Equality past and present, the Attorney General's office and An Garda Síochána.

Beidh mé ag roinnt mo chuid ama le Teachtaí eile. Braitheann sé ar cé a thagann in am. I will take approximately eight minutes.

It has been clear in recent days that the Department of Justice and Equality has quite serious and fundamental problems, a point that has, I think, been acknowledged by Government spokespersons. There have long been concerns about the Department. This is the reason the Toland report was first commissioned. What the Toland report found was a "secretive and closed" Department, so much so that secrecy was "part of its DNA". It had "significant leadership and management problems", and Mr. Toland recommended "fundamental and sustained organisational and cultural change". The quite shocking revelations of recent weeks underline this even further. They led to the resignation of the former Tánaiste, which was caused in substantial part by a Taoiseach trying to brazen out a controversy despite clear wrongdoing and despite his having knowledge of the later emails since Friday, as, apparently, did Deputy Micheál Martin. If the latter had intended to allow a fudge, permitting the former Tánaiste to remain in place right up until the public outcry on Monday night, this raises questions about his judgment. In general, serious questions have been raised about the culture in the Department, particularly in the context of how the documents at the heart of this controversy were not found earlier and sent to the Charleton tribunal.

Yesterday evening, we attempted to bring forward a motion which outlined very specific changes. The motion was ruled out of order for procedural reasons - unfairly, in our view. We have therefore brought forward a motion which calls on the Government to amend the current terms of reference to include explicitly a number of matters. The proposals we brought forward would have explicitly included the Minister for Justice and Equality and Department officials. In order that people understand what changes we feel are required and why they are required, I circulated to all Members early this afternoon a copy of draft changes I will propose. If any Member does not have this, I can arrange for him or her to receive it. These changes would do a number of things. First, they would allow the commission to investigate what knowledge officials, advisers and Ministers in the Department of Justice and Equality had of the issues under discussion at the tribunal. The current terms only allow for investigation of the knowledge of the former Commissioners, Mr. Callinan and Ms O'Sullivan, which is a significant shortfall and a significant difference. Second, the changes would make explicit that contacts with the Department of Justice and Equality fall within the scope of the tribunal. Quite substantially, and crucially, the changes also include a new term of reference relating to the possibility of a cover-up, suppression or a deliberate failure to disclose central documents on the part of the Department, the Garda and the Attorney General's office, as per recent revelations.

This is an issue of the greatest seriousness and one which was not truly anticipated by the Government at the time of the drafting of the terms of reference. However, it is central to the current controversy because the Minister's explanations for the late discovery of these documents are simply not credible. Likewise, the Minister's explanation for not reading the email on 13 November, when he was informed by telephone of it, is not credible. He says he did not read the email until the same date as the Taoiseach read it. He felt no need to ask further questions as to what the email contained regarding the nature of the legal dispute referenced at the O'Higgins commission, yet he allowed a press release to be issued on the following day which stated:

It was solely a matter for the parties to the O'Higgins Commission of Investigation to decide what legal approach to take to the work of the Commission, taking into account the legal advice available to them. In the circumstances, the Department of Justice and Equality would have had no role in determining the approach ... taken by the Garda Commissioner to the Commission in question.

There is a clear reference here to what was a legal strategy and the subject of the email referenced in the phone call. How could the Minister not join the dots? How did he feel he could make a public comment on the legal approach taken by the former Commissioner yet not check any further when he got a call stating that he had received an email on the same subject?

I return to the specific issue I raised with the Minister yesterday. He confirmed that these documents are new and that they were never considered for either the Iarfhlaith O'Neill scoping exercise or the discovery order for the Charleton tribunal. These searches showed up something of the order of 230 documents for the tribunal. I ask again, how is it possible that, in the context of a scoping exercise or a discovery order, emails from the key officials and political staff within the Department, including the former Minister herself, were not considered? Is it the case that these email accounts were not checked? How is it possible they did not show up in searches, given where they were located? It is beyond extraordinary. Email searches are not especially complicated procedures. The Minister needs to find out and answer whether these email accounts were searched and, if not, why not. Furthermore, there are enough questions there to warrant another question being asked: was there a cover-up, a suppression of information or a deliberate failure to disclose documents? The tribunal needs to consider that matter.

The Taoiseach has initiated a so-called external review. For a start, we believe that review should be carried out by someone outside the Civil Service. However, we also believe this is likely to be a private affair and largely a procedural initiative and unlikely to probe underlying intent, which is crucial. What caused these emails not to be discovered? An exploration of this question, heard in public, would be an important step in getting to the truth and restoring public confidence. I believe this question arises in the minds of many, and the only way for the Minister to have it proved or disproved is through the tribunal. As I said, this was not considered at the time and it is essential to have it probed now. I will quote what I believe is a very pointed, well-argued piece by Fintan O'Toole published in The Irish Times yesterday. It states:

[I]n any case, it is highly implausible that the only documents missed in the trawl in February happen to be the ones that are most relevant to the tribunal's task of investigating contacts between the Garda and members of the Government on the alleged smearing of Maurice McCabe ... the department handed over fewer than 300 documents to the tribunal. This is by no means a massive cache - the explanation that the explosive emails were needles lost in a giant haystack simply doesn’t wash.

The suspicion of deliberation is, moreover, enhanced by subsequent events: the refusal to answer Alan Kelly's questions in the Dáil, Frances Fitzgerald's now discredited claim to have had no knowledge of the Garda strategy to attack McCabe, Charlie Flanagan's extraordinary reluctance to tell his own Taoiseach that he was misleading the Dáil when he insisted that Fitzgerald knew nothing of the whole affair until it eventually became public.

Unless we hear a very good explanation, we have to assume that the withholding of the emails was deliberate. And this is an extremely serious business. If Katie Hannon had not revealed the existence of the first email last week, it seems likely that the Charleton tribunal would have proceeded on the basis of radically incomplete information - an abuse, as the judge said, of public resources, but also a defiance of the democratic will of the people as expressed by unanimous votes in both houses of the Oireachtas.

This makes the case quite clearly, and it is indeed a very serious business.

It is in fact a criminal offence under the Tribunals of Inquiry (Evidence) (Amendment) Act 1979. In addition, if it is the case that the Charleton tribunal was hobbled by this, we now also need to find out how this happened and if someone deliberately failed to hand over these documents. The Minister, the Taoiseach and the Government have said they do not fear the truth. Given the Government and the Taoiseach's commitment to transparency on this issue in recent days, as well as a similar commitment from Fianna Fáil, I hope they will support this logical step. The existing terms of reference are clearly not adequate to explore this matter. The seriousness of the potentially deliberate suppression or withholding of documents is that serious that it requires discussion via the tribunal in public, and that is a change we need to make in this House.

Deputy Caoimhghín Ó Caoláin

The unfolding events of the past ten days have been staggering. They have exposed a rotten system whereby attempts were made, apparently at the highest level, to smear as a sex abuser a man who had the courage to expose huge wrongdoings within An Garda Síochána. The strategy employed against Detective Sergeant Maurice McCabe is one in which officials of the Department of Justice and Equality and the former Tánaiste and Minister in that Department, Deputy Frances Fitzgerald, despite their protestations, were complicit, either by their silence, negligence or, at best, incompetence. Those who continued to back the former Garda Commissioner, despite being aware of the strategy being deployed against Detective Sergeant McCabe, have serious questions to answer.

So much of what we have been told is simply not credible and many questions remain unanswered. How was it that following two substantial trawls for relevant documentation, for the purposes of the O'Neill inquiry and the Charleton tribunal, respectively, these damning emails were missed? How could that have happened? Were they viewed as not being relevant? What else has yet to be discovered? Given the supportive relationship between the former Minister and senior Department officials, on the one hand, and the former Garda Commissioner and her senior staff and colleagues, on the other, has the so-called trawl included a search of other than their official lines of communication? Is there any other avenue of address that has yet to be employed in order to ensure we have a comprehensive picture?

While I cannot confirm the authenticity of the claim, it seems an email was sent from an official in the Department of Justice and Equality to the then assistant commissioner, John Twomey, in September 2015. That email included a noteworthy sentence. I wonder if this is one of the 230 items to which the Minister, Deputy Flanagan, referred in last night's address. The email apparently contains the following sentence, "Same shit happening again, Wilson, Harrison and McCabe." It is important to establish the veracity of that document. We are advised that it is indeed a quotation from an email which issued from the Department. I would like to have that confirmed or denied vehemently, hoping the latter is the case.

It is hard to fathom that having taken a call on 13 November regarding these emails, the Minister, Deputy Flanagan, did not read them until a week later, 20 November. Having listened carefully to what he said last evening, surely he must accept that so much of this simply does not add up. I could go on but there is not the time to do so. I conclude by highlighting my concern at the decision of the Secretary General to bring forward his resignation with immediate effect yesterday, when the original tendering of his intention to resign indicated he would remain in position until February 2018. He had been summoned to come before the Oireachtas Joint Committee on Justice and Equality this day week to discuss these matters. The Minister is not available because of other business and the former Tánaiste is perhaps not in a position to attend either. As Chairman of the committee, I wish to register my concern about this.

It is clear that a revision of the terms of reference of the tribunal of inquiry into protected disclosures made under the Protected Disclosures Act 2014 and certain other matters is now required. The motion before the House is deserving of unanimous support.

Deputy Jonathan O'Brien

I was justice spokesperson for my party when the original terms of reference relating to the disclosures tribunal were being drafted. The former Tánaiste and Minister for Justice and Equality, Deputy Fitzgerald, met all interested parties at the time to discuss those terms. One of the recommendations that was suggested by us and by several other groups was that the Department should be specifically named in the terms. We were told, however, that the phrase "other State entities" would cover that.

Things have moved on a great deal since those terms were drafted and we are in a completely different landscape. We now know, for example, that critical emails which go to the very heart of what Mr. Justice Peter Charleton was examining were withheld for some reason or were not discovered. If they were not found, then there are questions as to how deep was the trawl that took place on two previous occasions, the first being the scoping exercise for Mr. Justice Iarfhlaith O'Neill's inquiry and the second being the discovery order for the tribunal itself. It is astonishing that despite the emails we are discussing not being discovered in the course of those two investigative processes, they were found within a couple of days of parliamentary questions being tabled. To be clear, the emails in question were found in a matter of days after the Taoiseach ordered a deep trawl of all correspondence that could be relevant, yet they were not discovered in the course of two previous exercises, one of which was a discovery order made by a tribunal. There are questions to be answered in that regard. Moreover, I am not 100% certain at this stage that all relevant documentation has been found, because I do not know how deep the trawl which took place last week went. We know it went far enough to find a number of emails that were "new", as the Minister classed them yesterday. To clarify, it was not the case that these emails had been considered but it was decided they should not be handed over to the Charleton tribunal. This was new information being presented by the Department.

The Taoiseach has undertaken to implement an external review of these matters, to be carried out by the Secretary General of his own Department. We have raised some concerns in this regard. In fairness to the Taoiseach and the Minister, they indicated yesterday that they are open to Members of this House nominating or recommending a person outside the Civil Service. I certainly hope we can come to an arrangement whereby an external person is tasked with overseeing the review, rather than a person from within the Department of the Taoiseach or any other Department, or, indeed, a civil servant.

Events have moved rapidly in recent days and there is a perception that the documents we are discussing were withheld intentionally. If that is the case, then a criminal offence took place. In order for justice to be done and be seen to be done, these matters must be addressed in public by the tribunal. The only way that can be done is by revisiting its terms of reference. I encourage the Minister to ensure that there are no further documents, emails or other correspondence within the Department that are of relevance to the investigation. I suggest, in addition, that a similar deep trawl be conducted within the Department of Children and Youth Affairs, particularly in light of the fact that some of the allegations levelled at Detective Sergeant McCabe involved Tusla, which comes under the remit of that Department.

That also needs to be considered by the Government. We need to go beyond the Department of Justice and Equality to ensure that all relevant information is being presented. We are speaking in a bit of a vacuum because we do not know what the Minister's response will be to the proposals to extend the terms of reference. I hope the Minister is open to this and I hope he will sit down with the justice spokespersons to try to accommodate that. I await the Minister's response on that. If he is not open to it then people will come to their own conclusions.

Minister for Justice and Equality (Deputy Charles Flanagan)

I very much recognise the disquiet and concern expressed in this House and the Upper House regarding matters pertaining to material discovered to the disclosures tribunal by my Department in recent days following a number of search and retrieval processes. I remind the House of my statement last evening wherein I explained that responding to parliamentary questions about issues that, prima facie, fall under the tribunal's terms of reference arose would, from my understanding, amount to a breach of the Standing Orders of the Dáil, improperly encroach on the workings and proper functioning of the tribunal and amount to a parallel process, thereby having the effect of undermining the tribunal. As the Ceann Comhairle is aware, I have sought the counsel of his office in respect of how this House might go forward in addressing parliamentary questions of this nature. I look forward to hearing from the Ceann Comhairle about this. It is absolutely essential that we, as parliamentarians, whether as members of the Government or the Opposition, all know and are informed of the parameters within which these issues can be discussed, having regard to the fact that there is a tribunal of inquiry which was agreed by a resolution of the House and which has commenced its work. The tribunal has been engaged and charged with the type of activity that is the subject matter of debate in the House. I look forward to hearing from the Ceann Comhairle in respect of this matter.

We are all aware that the tribunal has been sitting in private session recently because it is engaged in a scoping exercise regarding term of reference [p], which addresses the matter of the targeting or discrediting of any garda who has made a protected disclosure prior to 16 February 2017. As a result of the fact that the tribunal has not been holding public hearings, I am of the view that Members may perhaps have overlooked its very comprehensive terms of reference. Many Members made important contributions and worked closely with my predecessor in ultimately agreeing terms of reference that were acceptable to all. My view, confirmed by legal advice from the Office of the Attorney General earlier today, is that the tribunal already has the discretion to examine the matters put forward in the motion before us. For that reason, the Government has decided to oppose the motion.

I shall elaborate further on the advice provided to me. I refer to the terms of reference [e] and [h]. My advice is that the combined effect of these terms could be viewed as encompassing examination of any communications between the Department of Justice and Equality, Ministers for Justice and Equality past and present, the Attorney General's office and An Garda Síochána regarding "legal strategy". Furthermore, regard should already be had to the current term of reference [e] which provides that the tribunal is required:

To investigate whether the false allegations of sexual abuse or any other unjustified grounds were inappropriately relied upon by Commissioner O’Sullivan to discredit Sergeant Maurice McCabe at the Commission of Investigation into Certain Matters in the Cavan/Monaghan district under the Chairmanship of Mr. Justice Kevin O’Higgins.

Term of reference [h] states:

To investigate contacts between members of An Garda Síochána and:

— Media and broadcasting personnel,

— members of the Government,

— TUSLA,

— Health Service Executive,

— any other State entities,

— or any relevant person as the Sole Member may deem necessary to carry out his work;

relevant to the matters set out in [a], [b], [c], [d], [e] and [f] above.

Clearly, this includes all and any Departments, appropriate agencies or State entities. I am sure that Members have copies of the terms of reference before them in the context of this debate.

I am satisfied, therefore, that the terms of reference which this House formulated and agreed, provide a wide discretion to the tribunal. It is my priority, and that of the Government, to let Judge Charleton get on with his critical work. I urge Members to go back and read the record of the debate in House on 16 February 2017, when we agreed the terms of reference. On that day, Deputy Jonathan O'Brien - who has just left the Chamber - stated:

Yesterday, we met with the Minister and brought to her seven separate proposals in terms of the changes we would like to see made. I am glad to say that six of those proposals have been taken on board in some capacity.

Deputy Brendan Howlin stated:

I thank the Tánaiste for meeting me yesterday and for producing terms of reference which I believe encompass the issues I have raised. I wish Mr. Justice Charleton well. I hope his ambition to complete his work within the reasonable timeframe he has set out becomes a reality.

Deputy Jim O’Callaghan stated:

I wish Mr. Justice Charleton well in the task he has to do. He should be given the opportunity to do it without background noise from politicians or from the parties affected by the tribunal. Ultimately, we will have a report, and I believe the report will be to the benefit of Irish society.

I agree wholeheartedly with all of these comments. I have just highlighted some aspects of the long debate but they show a widespread endorsement of the House for the terms of reference as set. The reason the Opposition gave such a welcome to the terms of reference was because they recognised their comprehensive nature and the wide discretion afforded to the sole member, namely, Judge Charleton. I repeat the importance of allowing him get on with his critical work in the context of the issues raised.

On Friday last, the tribunal issued a public notice stating that:

The tribunal is mindful that the instrument setting up this process, pursuant to resolution of Dáil Éireann and Seanad Éireann, noted that "a public enquiry is the most appropriate way to investigate" the matters of "public disquiet" at issue in the terms of reference.

The tribunal, mindful that it is required "to inquire urgently into" the issues before it pursuant to the mandate of the Oireachtas as "definite matters of urgent public importance" ... [and noted that] The tribunal will sit from Monday 8 January 2018 in relation to terms of reference (a), (b), (c), (e), (f), (g), (i), (j), (k), (l) and (m).

In other words, the tribunal will inquire into issues relating to the O’Higgins commission and related issues. The public notice also indicates that the tribunal will inquire into:

... the allegations of Superintendent David Taylor as to alleged negative briefing against Sergeant Maurice McCabe and the knowledge, if any, Commissioner Callinan and Commissioner O’Sullivan, both now no longer in office, had of same, and whether Sergeant McCabe was subject to any attempt to "entrap or falsely accuse" him of "criminal misconduct". Necessarily included are telecommunications interactions, electronic and paper files bearing on same and any meeting relevant, including, but not limited to, that in Bewley's Hotel on 24 January 2014. A central part of this enquiry is as to attitudes to Sergeant McCabe and any translation of that into malicious behaviour or inappropriate action. In that regard, the tribunal is specifically mandated to enquire into any use by "Commissioner O’Sullivan" of "false allegations of sexual abuse or any other unjustified grounds" which may have been "inappropriately relied on ... to discredit" him before the Commission of Investigation chaired by Mr Justice Kevin O’Higgins. That enquiry makes relevant any "contacts between members of An Garda Síochána" and the media, or "members of the Government" or any other "relevant person" at the tribunal’s discretion. This hearing will incorporate any issue as to the RTÉ broadcasts of 9 May 2016 and the role, if any, of Commissioner O’Sullivan.

I ask all Members to accept, as I believe they will, that it is imperative that the tribunal be allowed to proceed with its work. I am legally advised that the extremely broad nature of the motion renders it unclear in the specific context what additional terms of reference, if any, might contain or seek to achieve in the public interest.

Deputy Donnchadh Ó Laoghaire

We have just told the Minister.

Deputy Charles Flanagan

No one in the House wishes to further delay a tribunal which is undertaking vital work and which, indeed, has brought forward its work in recognition of definite matters of urgent public importance. We are all agreed that not only are these matters important, but they have now become urgent. I am advised by the Attorney General that the law governing tribunals mandates that an amendment to the terms of reference would require a fresh resolution of both Houses followed by the Government acceding to the request of the tribunal. This would clearly impact on the very strict timeframe before us. We all look forward to the commencement of the public sessions on 8 or 9 January.

Deputy Jim O'Callaghan

The motion before the House seeks, in general terms, an amendment of the terms of reference of the disclosures tribunal in order that it can take into account what are referred to as "the recent revelations regarding the Department of Justice and Equality". In discussing the motion, it is important to take ourselves back to 16 February when the House, and the Seanad on the following day, passed resolutions establishing the disclosures tribunal and ask ourselves what knowledge we had at the time we considered the terms of reference. There were three real issues at the time which led to the establishment of the tribunal of inquiry.

First, a protected disclosure had been made by a superintendent based in the Garda press office. While we had known of the disclosure previously, a report of Mr. Justice Iarfhlaith O'Neill indicated that it required further investigation. He was not in a position to assess it based on the paper review he carried out and he recommended a commission of investigation. As such, there was a general consensus in the House that there should be a commission of investigation to examine the allegations made by Superintendent Taylor in his protected disclosure.

Second, a fact came to light in February which was probably the main reason that the debate changed from one on a commission of investigation to one on a tribunal of inquiry. That was the revelation that there was a Tusla file. A number of days before the debate in the House on 16 February, it was revealed on an RTÉ programme that a Tusla file had been created in respect of Sergeant McCabe which contained allegations which we now know to be false.

Third, there was a general allegation floating around at the time which was mentioned in certain media organs and the House, albeit it did not receive as much prominence as the protected disclosure or the Tusla file. That was the allegation that the Commissioner had cross-examined Sergeant McCabe in the O'Higgins commission in an unfair manner, if I can use that term, and that she had put to him allegations which were false, including false allegations of sexual abuse.

Those are the three issues which were in everyone's mind when we came to discuss the terms of reference of the tribunal of inquiry. Clearly, it was really when the issue of the Tusla file emerged that the House recognised that a commission of investigation was unsatisfactory and we wanted a tribunal of inquiry. The person who initially prompted that idea was the solicitor for Sergeant McCabe and the House was happy to accede to it.

Subsequent to the acceptance that there would be a tribunal of inquiry, there was consultation with the parties by the former Tánaiste and Minister for Justice and Equality. We all had an opportunity to have an input into the terms of the reference. Given the time available, we did pretty well in terms of the extensive terms of reference we managed to get through the House. The next day, 17 February, the tribunal was formally established through a statutory instrument signed by the Minister. From my own point of view, it never occurred to me on 16 and 17 February that the Minister was aware of a strategy that had been adopted by the Garda Commissioner in the O'Higgins commission of investigation. In fact, there was a dispute about that Garda strategy. It was mentioned in the Irish Examiner and in the House and the response was that there was one page of transcript and that it was not possible to speak about it because the inquiry was conducted in private. The general assumption was that it was an issue in dispute whether there was a strategy engaged in by the Garda Commissioner at the O'Higgins commission of investigation. No one ever thought the Minister was in any way aware of it, involved in it or even acquiescing in it. It is important to know where we were back in February.

That is where we were then, but let us think of where we are now. The motion states that the terms of reference need to be amended to take into account recent revelations regarding the Department of Justice and Equality. The issue around those revelations can be succinctly stated as follows, namely, whether the previous Minister for Justice and Equality was aware of the fact that there was an aggressive challenge to Sergeant McCabe's motivation and integrity at the O'Higgins commission of investigation. The information we have now suggests the Minister was aware. We have that information from emails dated 15 May 2015 and 4 July 2015, which were disclosed recently. The extent to which the Minister was aware of, acquiesced in or was involved in this issue is a matter of public concern. We only know a certain number of facts at this stage, which is what we see in the emails, but we do not know everything else. What we need to do is look at the terms of reference as they exist to determine whether they cover the issue which has recently arisen on foot of these revelations.

The Minister is correct technically to refer to term of reference [e] which requires the sole member to investigate whether the false allegations of sexual abuse or any other unjustified grounds were inappropriately relied upon by former Commissioner O'Sullivan to discredit Sergeant McCabe at the commission of investigation under the chairmanship of Mr. Justice Kevin O'Higgins. That is very specific and limits the question to whether the former Commissioner engaged in this strategy. The reason that term of reference was included was because we did not know at the time whether there was any truth to the allegation and whether the former Commissioner had done that. Paragraph [h] of the terms of reference says there should be an investigation of contacts between members of An Garda Síochána and members of the Government and any other State agencies in relation to the matters set out, inter alia, at paragraph [e]. On a technical interpretation of those terms of reference, the Minister is correct that this comes within their ambit. Had it not been for recent revelations, however, it is unlikely that the tribunal of inquiry would have investigated the issues we are discussing today, namely, whether the Minister was aware of the fact that this strategy was adopted before the O'Higgins commission of investigation.

Yesterday, the Minister for Justice and Equality stated that 230 documents had been disclosed by the Department to the tribunal. I wonder how many of those relate to the issue we are talking about here today, namely, the extent to which the Minister was aware of the strategy. I do not know, but I suspect that most of those 230 documents relate to other aspects of the terms of reference which are not the subject of the recent revelations. If all we had were the terms of reference from 16 February 2017 and the recent revelations that came out, I would have a concern that the chairman of the tribunal, Mr. Justice Charleton, might not think it necessary or appropriate to investigate this issue. Fortunately, however, he made a statement last Friday which was extremely helpful.

It epitomised what a tribunal should do because we establish a tribunal "to inquire urgently into" matters of public importance that give rise to "public disquiet". This is an issue that has given rise to huge public disquiet. Last Friday, he issued a public notice in which he elaborated how he intends to interpret the terms of reference and what he says will be the way he will conduct his investigation. He said in that notice he will start hearings on 8 January 2018. In paragraph 3 of his notice, he said:

In considering those terms of reference, the tribunal is mandated by the Oireachtas, under terms of reference [h], to "investigate contact between members of An Garda Síochána" and "any relevant person" which the tribunal "may deem necessary to carry" out its work. This includes, but is not limited to, "members of the Government", the media, social services and "any other State entities". This grouping of terms of reference will be dealt with in a single hearing with a view to completing the hearings of the tribunal with the utmost expedition. This is subject to the cooperation of the parties... [In that regard,] the tribunal is specifically mandated to enquire into any use by "Commissioner O'Sullivan" of "false allegations of sexual abuse or any other unjustified grounds" which may have been "inappropriately relied on... to discredit" him before the Commission of Investigation chaired by Mr Justice Kevin O'Higgins. That enquiry makes relevant any "contacts between members of an Garda Síochána" and the media, or "members of the Government" or any other "relevant person" at the tribunal's discretion.

The statement issued by the tribunal chairman last Friday is clear and unambiguous. He is going to investigate, starting on 8 January, the issues which were the subject of recent revelations, which gave rise to public disquiet over the past two weeks. Members of Government over the past week or so also repeatedly emphasised that these issues would be dealt with in the tribunal. There is no suggestion that members of the Government will not expose themselves to the investigation of this matter. There is no suggestion that the Department of Justice and Equality will not co-operate with this inquiry and there is clear evidence that Mr. Justice Charleton regards the recent revelation as being a matter he is going to investigate. In light of the statement that the chairman issued last Friday, I do not have any concern that the terms of reference are not wide enough and I believe that we should be very careful about interfering in the process that is up and running, which is being run very efficiently and which has its timeline to start public hearings in respect of these matters on 8 January next.

The tribunal was established on 17 February and had its first public sitting ten days later, on 27 February 2017. The opening notice published by the chairman of the tribunal reveals that he is fully aware of the issues of public concern. He has indicated that he will deliver reports on a modular basis. There was a public hearing in respect of another member of An Garda Síochána, and I understand that the report on that module will be delivered this week. He has also delivered a first interim report in which he has set out the basis upon which he is proceeding with his work.

If we are going to change terms of reference, we should do so in consultation with the chairman of the tribunal. The last thing we want to do is to stick our size 13 foot into terms of reference which seem to be operating efficiently until a group of politicians get together and say they have a better idea. Every person who has co-operated with the tribunal to date has done so on the basis of the terms of reference set out from February of this year. If it is now to be the case that those terms of reference are going to be changed, individuals could come along and say they co-operated on the basis of the terms of reference as set out. If they are now told there is to be some other requirement or some other line of investigation they will have a legitimate concern to state in light of that they are going to reassess their position. People have provided documents to this tribunal on the basis of a certain understanding, that it is going to investigate the issues here.

It may be worthwhile, and I urge the Minister to consider doing this and I will be interested to hear what other colleagues in the House think of it, for the Minister to write to the chairman of the tribunal, noting his public notice of last Friday, referring to this motion and stating that if he believes there is any necessity for the terms of reference to be amended or changed in any way this House would be receptive to that. If the chairman said that in light of recent revelations he needs the terms of reference slightly amended in order to enable him to investigate this line, we would no doubt all agree to that.

In his opening statement, the chairman of the tribunal referred to the work that the tribunal is required to do. Many people misunderstand what a tribunal of inquiry does. It investigates and reports on facts. It is not a body that apportions criminal or civil liability and it is certainly not a body responsible for making people politically accountable, an argument mooted in previous days. It will consider the evidence it has and reach findings of fact in respect of that evidence based on the terms of reference. It starts with a blank sheet of paper. It is wholly dependent on information being provided to it and evidence being given to it. Documentary evidence is crucial to a tribunal of inquiry because it gives an indication as to the contemporary statements, thinking and attitudes of individuals at the time those documents were generated. It is easy to come along and say that one did something two years ago but if there is an email from one stating X, Y or Z, it is more difficult to get away from that. It is absolutely imperative that everyone co-operate in providing documents.

One of the difficult aspects of this tribunal, however, in respect of the term of reference about the commission of investigation is that many of the documents may be legally professionally privileged. A person who prepares a document for a commission of investigation is entitled subsequently to say, if it has been prepared with legal advice, that they will not disclose that document because it was generated under legal professional privilege and they are entitled to claim that privilege. I asked the Minister yesterday, and I am not trying to tie him down to an answer now, but it would be interesting for the House to know if the Department of Justice and Equality has sworn an affidavit of discovery for the tribunal of inquiry. If an affidavit of discovery has been sworn, and I assume it has been, is the Department claiming privilege over documents which were generated in 2014, 2015 and 2016? The Department is obviously receiving legal advice today. Nobody is suggesting that written legal advice should have its claim of privilege lifted. In terms of documents dating from 2014, 2015 and 2016 relevant to the O'Higgins commission, however, the Department should waive its claim to privilege. The former Commissioners have waived their privilege attaching to any confidentiality that may exist in respect of their communications with other journalists.

The documents of 15 May 2015 and 4 July 2015 are particularly interesting because they evidence an awareness on the part of the Minister of a strategy being adopted by the Garda Commissioner at the O'Higgins commission of investigation. On the basis of those documents, there are a couple of facts which we can now say with certainty are true. First, there was a strategy by the Garda Commissioner at the O'Higgins commission of investigation to challenge the motivation of Maurice McCabe and to question him aggressively. The second fact is that the Minister was aware of that strategy at the O'Higgins commission of investigation. Those facts broaden the issue of concern for this House. They should be investigated and I know they will be.

It is surprising that the two documents that were not disclosed out of 232 relevant documents were documents which evidenced an awareness on the part of the Minister. For the past 24 or 36 hours we have heard condemnation of officials in the Department of Justice and Equality. We have heard that it is a dysfunctional Department. My only interaction with officials from it was in respect of a parole Bill and I found them to be extremely professional and efficient. What needs to be carefully scrutinised - we hope it is not the case - is whether politicians are seeking to blame officials in a Department for an error, which seems to have as its only benefit the protection of a Minister who was recorded as being aware of a particular topic.

When it comes to what was wrong about the O'Higgins commission of investigation and the strategy adopted there by the Garda Commissioner, we must reflect on what happened at the Guerin inquiry. The Guerin report which was published in May 2014 answered the question about Sergeant McCabe's motivation. It concluded that he was a person of integrity and recommended that there be a commission of investigation to investigate his complaints. It was for this reason he was, no doubt, so surprised - I am so surprised - that when the commission of investigation started, there was an attack on his motivation and integrity. In the light of this, I do not think it is necessary to amend the terms of reference.

Deputy Brendan Howlin

There is no doubt that the events of the past few weeks have damaged confidence in the Government. They have probably damaged confidence in politics generally and certainly have inflicted further damage on the administration of justice. Last night the Taoiseach referred to the Department of Justice and Equality as dysfunctional. This is a damning criticism of any Department, doubly so coming from the head of the Government. Followed by the immediate resignation of the Secretary General, I am sure it has not done much for morale in the Department. In the past fortnight we have seen evidence of maladministration in the Department. The silo-driven culture of secrecy referenced in the Toland report has once more been on display. Reasonable questions should receive reasonable answers. Instead, what we had was obfuscation, records being forgotten and then belatedly found and a remarkably casual attitude towards briefing people who were expected to answer questions before the House fully and truthfully.

There has been much talk about the Department, but it has always been the case that the Minister is the political head and responsible for it. There was the old idiom that the Minister was the corporation sole. Also in the old days every item of correspondence sent from the Department began with the phrase "I am directed by the Minister". It always caused me concern as Minister that thousands of letters were being sent every day stating "I am directed by the Minister". It was to underscore political oversight of the Department by the Minister. It is an important point, of which we should not lose sight in this House.

Last night I spoke about my scepticism of the independence of the review of these events being carried out by the Secretary General of the Taoiseach's Department. I still have these concerns. I welcome the immediate response of the Minister that he is open to others being involved, perhaps in tandem, because we need somebody with inside knowledge of how a Department works. I might perhaps come back to the Minister with a suggestion in that regard.

I am also sceptical about the stated commitment to implement the Toland report of 2014. The point was that implementation of its recommendations was to be immediate. All of the recommendations made were to have been worked into place within two years, but we now know that this did not happen. A failure to administer justice adequately has seen a remarkable number of resignations in recent years, up until yesterday. We have seen all of them mentioned in the newspapers and they include the resignations of two Garda Commissioners, yet none of us can contribute to this debate with confidence that deep and lasting change has occurred as a result of all of this, dating back to the Morris review.

I had occasion to speak to Mr. Frank McBrearty Jr. this morning and it was almost like revisiting all of the issues again. We have to be real about the changes we want to bring about. In particular, the attitude to whistleblowers of those involved in the justice sector has really been deplorable. The revelation that when Sergeant McCabe was being lauded publicly, a strategy was being deployed behind closed dooors to do him real harm speaks volumes. In recent days we have been discussing the failure to stop this from happening and it brings us to the core of the motion in front of us. It goes without saying the Labour Party will support anything that will ensure a full and comprehensive explanation of what happened to Sergeant McCabe is fully ventilated and exposed. In general terms, I certainly support the intent of the motion. My only question is whether a revision of the terms of reference is actually necessary. It appears that the Department has - we hope - provided all relevant material for the tribunal and I know that the Minister hopes it is now finally comprehensive. We can, therefore, safely assume that the Department at least regards this matter as being fully encompassed by the terms of reference already passed by the Houses, as confirmed by the Minister today.

From Mr. Justice Charleton's response to the Minister's submission, we can also assume that he regards this issue as being within his ambit, but it is worth confirming that this is actually the case. In the first instance, it is appropriate for the Minister and the Government to engage with Mr. Justice Charleton. His views should be sought on the scope of his existing terms of reference and whether he regards them as sufficiently robust and broad to encompass all recent events. The Government might then return and explain this to the House and explain the views of the inquiry on these matters and whether there is, therefore, a need for the House to revise the terms of reference. If that suggestion is accepted, it could be done speedily in the matter of a day or two. Then, at least, we would not waste the valuable time of this House in debating changes to terms of reference that were not needed or unnecessary if the judge himself, the sole member of the tribunal, regards such changes as unnecessary.

I am mindful of the comments of Deputy Jim O’Callaghan. I always regard his contributions as worth listening to because he has great experience of legal matters, although I thought his reasoning was a little odd in that he said no changes were necessary because they were already encompassed but that if we did make a change, the people already encompassed might object to the new terms. That does not seem to be consistent logic. If what the Sinn Féin Deputies want to achieve has already been achieved in the terms of reference, nobody will have any difficulty in underscoring it for certainty, ar eagla na heagla, as one might say.

I thank Deputy Donnchadh Ó Laoghaire for tabling the motion because it gives us an opportunity to focus once more on the substance of the matter rather than on much of the political debate that surrounded it in recent days. On behalf of the Labour Party, I am happy to support the motion, but I genuinely ask the Minister at the end of the debate to take as an interim step the suggestion I posit that he simply asks the tribunal whether there is a necessity to change the terms of reference or, as many believe, are they sufficiently broad to do all that is desired?

Deputy Richard Boyd Barrett

There was much lamenting of the fate of the Tánaiste yesterday on the Government side of the House. Do not get me wrong - I have no axe to grind with her personally, but the person who has most to lament in this sorry saga is Sergeant Maurice McCabe who first had the bravery to make a complaint in 2006 about malpractice in An Garda Síochána.

It is now 2017 and we still have not got to the bottom of how the institutions that are supposed to uphold justice sought to suppress an effort by a member of the Garda Síochána to do what the Garda is supposed to do, uphold the law and justice. He has been put through the wringer. Those who have fallen victim to the scandal surrounding Maurice McCabe are the people who were responsible for upholding justice and the law and who should have protected Maurice McCabe, but failed to do so. They failed to prevent the smear campaign against Maurice McCabe which, had it succeeded and had he not had the presence of mind to have a tape recorder with him at the meeting with the senior gardaí, would have ruined his life beyond repair. That is what is at stake here. Of course, it goes beyond individuals. If they can do that to one whistleblower, how can they be trusted to uphold justice for all of society?

This motion proposes, in the aftermath of the scandals and revelations, that the Dáil was misled about what Ministers and Departments knew about the campaign to smear Maurice McCabe. It was hidden and information relevant to the Charleton tribunal was not handed over to the tribunal. Mr. Justice Charleton has made clear that this is a criminal offence. That is what we are discussing. Fintan O'Toole makes a very good case today that there is nothing ambiguous or problematic about the terms of reference of the Charleton tribunal. They are very clear that everything germane to the smear campaign against Maurice McCabe should be handed over to the tribunal. That means any and all Government officials, Ministers and members of the Garda Síochána who had information germane to this should have handed it over. However, and the Minister is right to nod, they did not do that. That is a key point.

It is entirely justified to suggest that we examine the terms of reference. Sinn Féin has done us a favour in making that suggestion this evening, whether it is a matter of adding a few lines or a matter of questioning whether we can trust either the politicians who are responsible for ensuring this information is provided or the officials or both to give the information which Mr. Justice Charleton needs and has insisted he must have. Then we get to the game of ping pong between the politicians and the departmental officials. The implication is that it did not happen under the former Minister for Justice and Equality, Deputy Fitzgerald, and perhaps under the current Minister - I do not know as I am not quite clear about the explanation he is giving for the failure of his Department to hand over this material when it was supposed to. However, it did not happen under his or the previous Minister's watch.

The fish rots from the head, or at least the head must take responsibility. If the Minister's explanation is that it was the officials, he is saying that dysfunctional, rotten, corrupt, incompetent - I do not know what we can call them - officials are running rings around the Ministers who are supposed to run the Departments. That is what he is telling us. It is a damning indictment. Is the Minister telling us that officials are running rings around him or is it, in fact, politics at play, not incompetent officials? Is it a combination of both, with officials doing what they think the politicians want them to do or doing what politicians are giving them the nod and wink to do? I do not know. However, as Deputy O'Callaghan asked, who benefitted from the fact that the emails were suppressed? It is the Minister who is named as knowing things that she said she did not know. What is the Latin phrase for checking who benefits? I cannot remember. Perhaps the Ceann Comhairle's Latin is better than mine.

Deputy Donnchadh Ó Laoghaire

Cui bono?

Deputy Richard Boyd Barrett

Cui bono, who benefits from the suppression of that information? The suppression of the information would not have come out but for the fact that Katie Hannon exposed it. We would not know and Mr. Justice Charleton would not have received it. That begs the question: even if we get commitments now that all the relevant documents are handed over, how do we know, despite all the hubbub, that they will be handed over?

What the Sinn Féin Deputies suggest in their terms of reference is stated in the existing terms of reference and the interpretation that Mr. Justice Charleton has given of them. Sinn Féin's additional terms of reference refer to the Department of Justice and Equality and its officials. I would extend that to all Departments, Ministers and any other Government body that might have known. I chatted to the Taoiseach yesterday about all of this. He said, as was said in the House today, that he believed Deputy Frances Fitzgerald would not have set out to try to destroy a whistleblower. I do not know whether that is true. She appears to be a decent individual but the question is-----

Deputy Charles Flanagan

But.

Deputy Richard Boyd Barrett

I said she seems to be a decent individual. What I cannot judge or what I find difficult to explain, and I do not know why the Minister is shaking his head, is how all this information could be in her Department and we are told it was not discussed. We are told that people forgot about it. It was so unimportant or registered so little at the time that people just forgot about it. It was the biggest political hot potato imaginable for the Government but it was just not discussed. However, was it discussed with other Ministers at the time? Other Departments and Ministers, therefore, and any communications they had relating to the smear campaign against Maurice McCabe should be also included in the information that is handed over to the Charleton tribunal.

Deputy Mick Wallace

I am sharing time with Deputy Clare Daly.

There is no need to revise the terms of reference for the Charleton tribunal and we will not support the motion. Paragraph (h) of the terms of reference states:

(h) To investigate contacts between members of An Garda Síochána and:

Media and broadcasting personnel,

Members of the Government,

Tusla,

Health Service Executive,

any other State entities,

or any relevant person as the Sole Member may deem necessary to carry out his work relevant to the matters set out in [a], [b], [c], [d], [e] and [f] above.

We wrote to Mr. Justice Charleton last March, before the tribunal started and before the issues of the last two weeks came to light, asking him to include the Department of Justice and Equality and the Department of the Taoiseach and their contact with An Garda Síochána when the hearings under paragraph [h] are to take place. With regard to paragraph (h) and "any other State entities", Mr. Justice Charleton has said that he interprets this as "including any body whether established by statute or otherwise or supported or established by the State". Obviously, the Department of Justice and Equality, the Office of the Attorney General and the Chief State Solicitor's Office fall under this category.

If, for the sake of argument, the recently retired Secretary General of the Department of Justice and Equality argues that he does not fall under this category any more, and I am not saying that he will do so, he is caught in the next category, "or any relevant person as the Sole Member may deem necessary to carry out his work relevant to the matters set out ...". The same applies to the retired deputy secretary general, Ken O'Leary, who was interacting with Nóirín O'Sullivan by email or even my good friend, the former Minister, former Deputy Alan Shatter. To give credit to the former Minister for Justice and Equality, Deputy Fitzgerald, paragraph [h] in the terms of reference is a catch-all provision. If Mr. Justice Charleton wishes to speak to somebody, he can. I spoke to a solicitor for the tribunal today who told me the tribunal is starting with paragraph [h] on 8 January next.

Mr. Justice Charleton has the power to ask the Oireachtas to amend the terms of reference for the tribunal and he has not done so. His work to date has been excellent. We have been down to the tribunal on three occasions and have been seriously impressed with him. We think he is a right one.

A broader issue that has been highlighted in the past two weeks involves how Departments and State bodies deal with records. Sinn Féin wants the terms of reference revised to take into account that there was a suppression of documents or other information which should have been provided to the disclosures tribunal. The problem with this is that there is no legislation that states that Departments or State entities are obliged to make records in the first place. The Freedom of Information Act 2014 and National Archives Acts, which constitute the legislation that regulates State records, only apply where a record actually exists in the first place. Neither Act requires Government Departments or State entities to make records in the first instance. There is no overall regulation of maintaining records so each Department has its own system. While the Charleton tribunal has the powers to compel the production of evidence, these powers are of little use where the evidence never existed. NAMA is a perfect example. It now has a policy of deleting the emails of staff one year after they have left the agency. This should be illegal but, unfortunately, it is not. We need legislation in this area. NAMA came under FOI on 13 April 2015. A number of days before that, on 12 March 2015, at a board meeting, NAMA said that it was recommended that the board resolve to approve the proposal that email records of NAMA officers be deleted one year after their departure from the agency and that approval was also sought to apply this proposal retrospectively to the email records of former NAMA officers. No good Government would have allowed that to happen. I know the Minister did not do it but the former Minister for Finance did and it was a crazy thing to do. It was like destroying the records of the State. It was nuts given that this is a State body and should be open to scrutiny.

Deputy O'Callaghan asked whether the Minister was aware of the strategy applied by the former Commissioner or whether the terms of reference for the tribunal might be a bit different if we had known that. I do not agree. I think the Deputy is underestimating Mr. Justice Charleton, who is perfectly capable of dealing with this. I have 100% confidence in him.

Deputy Clare Daly

I understand fully the motivation of Sinn Féin in tabling the motion. Given that the motion of no confidence was cancelled, it was entirely appropriate that we would discuss these justice issues. However, like Deputy Wallace, I do not see any need to support a change in the terms of reference. I must say, and I am not talking about Sinn Féin, that some of the ignorance that has been on display over the past two weeks in the public domain and in here regarding these issues has been shocking. The idea that what went on could have gone on without the knowledge of the Department of Justice and Equality and people in here standing up and acting surprised about that constitute a condemnation of where they have been and their lack of engagement around these serious issues over the past period. A member of the public sent me an email yesterday in which she reminded me of Abraham Lincoln's definition of a hypocrite, which I think is a very good one. He said a hypocrite was the man who murdered his parents and then pleaded for mercy on the grounds that he was an orphan. That is what we have seen here. People who are culpable in what went on over the past number of years have stood up and portrayed themselves as champions of justice, Maurice McCabe and whistleblowers inside An Garda Síochána. It makes us utterly sick to witness some of it. Let us be clear. Deputy O'Callaghan said that when the information came out in May 2016, we did not know if it was true or not. We did know it was true. At that time, Fianna Fáil chose to close its ears because it was politically expedient for it. The Labour Party chose to stand up full square 100% behind Nóirín O'Sullivan. At that time, we were already on the record as warning the former Minister that she would be brought down by the former Commissioner. Eighteen times prior to that, we raised issues regarding the way Garda whistleblowers were being treated behind the scenes despite what was being said in public. These chickens have very firmly come home to roost. It is completely wrong of people who supported the former Commissioner full square at that time to turn around and blame the former Minister for not acting on that information in 2015. The terms of reference and the role of the Department and the Minister were well articulated here in the discussions around the commission of investigation originally and what became the Charleton tribunal so it is utterly wrong of Deputy O'Callaghan to say it was unlikely that Mr. Justice Charleton would have investigated these issues. That is just wrong. Of course, he was going to investigate them. The terms of reference specifically provide for it. As Deputy Wallace said, we wrote to him on 10 March this year and asked him to include them but I do not think we needed to because having seen him conducting himself in previous cases he handled such as pyrite cases and having attended the tribunal, I can say that he is an incredibly capable individual. We do not need to tell him how to do his job.

There are huge issues of dysfunctionality in the Department of Justice and Equality that will continue outside the scope of this. We need an opportunity in here and for that, I am glad Sinn Féin did table a justice motion but there is no need to extend the terms of reference. They are well provided for in this case and I wish Mr. Justice Charleton well.

Deputy Mattie McGrath

I am also delighted to be able to speak on the motion. I will read it into the record:

That Dáil Éireann believes that a revision of the terms of reference of the Tribunal of Inquiry into protected disclosures made under the Protected Disclosures Act 2014 and certain other matters (the 'Charleton Tribunal') is required and should take place to take account of the recent revelations regarding the Department of Justice and Equality, Ministers for Justice and Equality past and present, the Attorney General's Office and An Garda Síochána.

I welcome the opportunity to speak on this Sinn Féin motion. It is timely and necessary given what we have learnt in recent days about the level of dysfunctionality within the Department of Justice and Equality. I know the Minister might say that he is learning as well but we all need to learn and learn very fast. I must say, however, that while we can and should criticise the Department for its more obvious failings, it would be reprehensible to use this crisis as an opportunity to tarnish vindictively or otherwise the good name of the majority of the staff in that Department. I lay the blame squarely at the top. I know the Secretary General has brought forward his retirement. I wish him well but it is not very helpful to the Minister. Regardless of whether we like it or not, the culture of so many organisations is usually a top-down process. It is the case with all organisations in this country. They forget about the ordinary people and where they came from and many of them forget about public service when they get so high up and so high and mighty. The political realities that the Department had to deal with over the past 40 years in terms of threats from the Provisional movement, loyalist gangsters and all other crime made it necessary for a legitimate level of secrecy to exist. We can all understand that. We still need that secrecy for certain operations to deal with the thugs who are robbing, marauding and destroying the lives of so many families in this country. We can all understand why that was needed. However, it should have become apparent a long time ago that the need for such levels of secrecy had passed and it was time for the Department to adapt itself to a new culture of transparency and open accountability and not to be dragged kicking and screaming around the place in this House and elsewhere.

I believe that what this motion is broadly seeking to achieve can only be a good thing. Let us cast the net as wide as possible in terms of gaining the kind of insight we need regarding what really went on and who knew what and when. It is necessary for us to find that out and that Mr. Justice Charleton gets all the information and is allowed to do his job and that such a situation would never arise again whereby very senior Department officials - I am not saying they found or discovered these things recently - would refuse to give full disclosure after being requested to do so by Mr. Justice Charleton and others. Someone asked whether it involved breaking the law. I think it did involve breaking the law. If it was accidental, it did not involve breaking any law but it could not be accidental. These kind of accidents do not happen. It is a deliberate denial of co-operation with what is required.

The original form of the motion is not the one we are debating. One of the terms of reference was to examine the role of Tusla. It originally sought in clause D to investigate the creation, distribution and use by Tusla of a file containing false allegations of sexual abuse against Sergeant Maurice McCabe that was allegedly sent to the Garda in 2013. It beggars belief that the apology was delivered to the wrong door. It would not be written in a Mills and Boon novel. It is bizarre. We are back again to the days of GUBU which I remember in the early 1980s. This is certainly GUBU. I accept that we are now dealing with an amended form of the motion. However, it is vital that questions such as the one about Tusla are explored further. Tusla is an organisation in which I have very little faith. It has been cut off from the HSE like the Rock of Gibraltar; it has been cut off and left to its own devices and, in many cases that come before me, without much accountability. It is not within the remit of the Minister, Deputy Charles Flanagan - thankfully, says he. This may be something the tribunal is examining, but the role of Tusla in the current debacle demands further scrutiny. We must also remember that we are here not only because of an alleged failure of duty but also because of the systemic lack of accountability. It could not be called anything other than systemic. There is no accountability, as I have been preaching for a number of years.

Some years ago I talked about the power of the House, to which the banks are oblivious. They do not care because we are inept at passing legislation to deal with them and what they have done. The senior officials are running the show. Ministers come and go and the officials are still the bosses. Incidentally, if I go back to the days of the late Brian Lenihan - God rest him - when the pension levy was introduced, they were the only cohort of people who escaped it. I brought it to his notice and he thanked me at a Fianna Fáil parliamentary party meeting for raising the matter because he had been told there was only a small cohort of 70 which ended up nearer to 1,000. They got away with not paying the pension levy when every other unfortunate taxpayer had to pay it. Why was that? It was because they had their hands on the handlebars of power. One would have needed a hammer and chisel or a jackhammer to take them off it. There is no accountability; they are accountable to no one.

We will have to reach a situation where the Secretary General will be elected by the people; otherwise we will have no accountability. They can send false information. They can send emails to tell people that it is a very serious matter but that no action is required. I do not believe it and have no ill-will against the former Tánaiste, but I do not believe it about something that serious. I have seen Ministers and Taoisigh taking very urgent calls. They have to deal with such issues, unless they are really blasé about it. They have to write the email, tick the boxes and tell themselves that they have done their jobs. It is a case of pass the parcel and there being no accountability. It is time people were held accountable. They should not be heading off with their fat pensions and then brought back to sit on interview boards or placed on different boards. The system is sick, broken and disgusting and must be changed. I wish the Minister well in that regard and hope he will have the stamina for it. He has been around here long enough to know where they are hiding, where the deadwood is and where the good people are. He should promote the right people. There should not be cronyism and there should be no party political people. We complain about the Minister, Deputy Shane Ross, but he was right when he wrote about the untouchables. They are here with us every day and one cannot say "Boo" to them. They have all the new rules, regulations and statutory instruments that they print. When we receive them from the European Union, they add about ten more statutory instruments to keep themselves in business. They create quangos for their friends. It is a rotting, stinking, disgusting culture. There are many good people in all Departments and organisations, but the cream that has risen to the top is not interested in serving Ireland. We are coming up to the centenary of the War of Independence. I said a while ago that if they were to come back, I know where they would start shooting and it would not be at people from another country, which I am not advocating.

Deputy Charles Flanagan

That is awful stuff.

Deputy Mattie McGrath

We need some form of a revolution. President Mugabe is gone. There are Mugabes here and there is no sign of them going anywhere. They are not elected by anyone, but they are the same kind of junta with the same mentality. Their mentality is they have the power and that they are keeping it and to hell with the Taoiseach, the Tánaiste, Ministers and anybody else.

An Leas-Cheann Comhairle

I know that the Deputy is in full flight-----

Deputy Mattie McGrath

Gabh mo leithscéal. I am only in half flight. I mean what I am saying. I am almost finished. Tá mé críochnaithe.

An Leas-Cheann Comhairle

The Deputy has passed the runway.

Deputy Mattie McGrath

I have overshot it. They are running away and will not answer questions.

Deputy Eamon Ryan

I am glad that Sinn Féin has tabled this motion. I have listened to what Deputy Clare Daly said. I agree with the intent of the motion that the terms of reference need to be revisited. My recollection of us setting them in February this year is that it was very typical of how the Oireachtas worked. There was a real political head of steam about what had happened with the Tusla files on the allegations made against Sergeant McCabe being shared by the Garda. There was also a lack of trust between Fianna Fáil and Fine Gael about whether they were being told the truth. At the time everyone thought we were in a political crisis that would lead to the fall of the Government. However, as soon as that issue was teased out and resolved - it did not lead to an immediate political problem - the difficulty was that when we came to set the terms of reference, we rushed through the last critical piece and did not get them right. We did not spend the right amount of time on it. We had very limited time to actually set the terms of reference.

We tabled a number of amendments to address the concern that the terms of reference which allowed for an investigation of communications up to May 2014 should be extended to May 2016. We felt that the terms of reference were excessively narrow and restrictive in looking at the emails sent between RTÉ, the Garda and other bodies that were involved. As I mentioned in one of the debates with the Taoiseach yesterday, we proposed that the Department of Justice and Equality be listed as one of the organisations subject to investigation. The Taoiseach said the current terms of reference covered that eventuality because one of the subclauses allowed for the Charleton tribunal to look at other State bodies. I think the original wording was deliberately drafted in such a way as to try to keep the Department of Justice and Equality out of the frame. That is the concern.

To a certain extent, what we have heard about in the past two weeks gives me valid reason for such concern. My concern is based on the fact that a tribunal is a cumbersome and awkward body. I have been involved in one or two previously. Unless the terms of reference are really nailed down and there is real clarity about what is being investigated, there is a danger that the tribunal judge could say he or she is not being given that leeway. There is a case to be made for a more forensic re-examination of the terms of reference to take into account what we have heard here in the past two weeks. That is a hugely important part of what is happening. If we are to restore faith in the Department, the House and the entire process, we need to carry through the objective which the Taoiseach mentioned yesterday of full transparency and seeking the truth. What is to be lost by really looking at the terms of reference to make sure we will actually achieve this objective? If there had not been a resignation yesterday, if the matter had been resolved between Fianna Fáil and Fine Gael and it was decided that the Charleton tribunal would be the body to discern the truth of what had happened with the Department of Justice and Equality emails, we would have been on an incredibly tight timeline because the whole political system would have been waiting for the outcome. Some of that pressure is now off us. Therefore, I do not see what is to be lost by having a completely thorough review and revision of the terms of reference of the tribunal to take account of what has happened. That is important for the Department of Justice and Equality. There have been many things said in recent days, but I think everyone agrees - the Minister and the Taoiseach have said it - that the Department has to come out of this as a completely changed institution.

Taking the example we put forward, it is perfectly valid to include the Department in the terms of reference and to allow the tribunal to specifically examine how it acted. In response to questions we asked last night, I understood the Minister to say that the emails had not been forwarded to the tribunal as a result of certain legal difficulties. I did not get an opportunity to ask about the exact nature of those legal difficulties. However, I would like to know because that is not an insignificant issue and it deserves to be the subject of a separate strand within the tribunal, which we could set out in the latter's terms of reference. If there are legal issues, the Charleton tribunal is perfectly placed to consider them and to come back to this House with a view as to whether they are valid. I cannot see a better way for us to look at that. The alternative would be to wait for the DPP to take a criminal prosecution or to try to build up a case. That would certainly not be quicker and I would prefer it to go through a tribunal process. I agree with Deputy Clare Daly; I trust Mr. Justice Charleton to be able to make an assessment of those legal arguments and to come back to this House with a recommendation as to whether it was appropriate. Whether there are criminal trials after that would be decided separately.

That is one example of an issue in respect of which we need to ask real questions and obtain some independent assessment, and the Charleton tribunal is perfectly placed to facilitate this. We should avail of the opportunity to amend the terms of reference in light of what has happened and ask for an opinion specifically on that point. In his wrap-up, the Minister may have a chance to answer that question and give me some indication as to what are the legal difficulties in respect of providing the relevant emails to the tribunal. I would appreciate that. Even if he is able to do so, I would still argue that the matter to which I refer would make a very valid case for revision of the terms of reference to ensure that we get clear answers to those questions.

I commend the Sinn Féin motion, which we fully support.

Deputy David Cullinane

Everything has changed since the Charleton tribunal was established. The last two weeks have obviously been very problematic for everybody, especially the Government. Everything has changed, except the terms of reference relating to the tribunal. Those who have spoken against the motion miss the point entirely. We have read the terms of reference line by line. Nothing in those terms of reference allows Mr. Justice Charleton to investigate whether there was a cover-up, whether there was suppression or withholding of documentation by senior Department of Justice and Equality officials or whether this was a collaborative approach by senior gardaí, politicians and senior departmental officials.

The Government has not got its head around this simple fact. There was a vicious campaign and a legal strategy constructed by very powerful people in senior positions in An Garda Síochána to build a legal defence around something they knew to be a lie in order to discredit a whistleblower. They did so because that whistleblower came forward and alleged wrongdoing in An Garda Síochána. The solution from their perspective was to circle the wagons and attack the credibility of the person who brought forward the information. We saw exactly the same in the case of the Garda College in Templemore, where the approach was to attack the internal auditors and not face up to the reality of the problem.

Again today we see the Government circling the wagons because it does not want the tribunal to be able to examine the very serious allegations of whether there was a cover-up. It seems that no lessons have been learned. On Friday and Saturday last, we again saw a circling of the wagons by the leaders of Fianna Fáil and Fine Gael to ensure there was not political accountability. Only on Monday, when it became absolutely clear that the former Tánaiste's position was untenable, was there movement. When it was clear from social media, from the media and from the political commentary that her position was absolutely untenable, only then did it become clear to Fianna Fáil and Fine Gael that their plan to circle the wagons had become unstuck. That is the reality and we are seeing more of it here today.

The Minister and the Government have a choice. They can continue to work with their counterparts in Fianna Fáil to circle the wagons or they can amend the terms of reference to ensure Mr. Justice Charleton has the power to investigate whether there was a cover-up. The Minister and others have said that it is for Mr. Justice Charleton to decide whether he needs more powers. It is up to the Oireachtas to set terms of reference. The Minister and his party have been playing fast and loose with the rules of this House in recent weeks, claiming that people in the House who introduced motions of no-confidence should not be able to do so that they are playing games, and we are simply doing our job. The same thing is happening here today. The Minister is the one playing the games, as are his Government colleagues and, also, Fianna Fáil at times. He should stop the game playing. He should stand behind the whistleblower in this case. He should stand behind what is right and amend the terms of reference. Let us for the first time on this issue establish the truth and the facts.

Deputy Pat Buckley

I commend Deputy Ó Laoghaire on bringing the motion to the floor of the House. I start by reading a statement released by the McCabe family earlier this year. I appeal to the House to listen to it because it is important. Please God, it might sway some of the doubters. It states:

We have endured eight years of great suffering, private nightmare, public defamation and state vilification arising solely from the determination of Maurice to ensure that the Garda Síochána adheres to decent and appropriate standards of policing in its dealings with the Irish people.

Our personal lives and our family life, and the lives of our five children, have been systematically attacked in a number of ways by agencies of the Irish state and by people working for the state in those agencies ...

We have also been the subject of a long and sustained campaign to destroy our characters in the eyes of the public and public representatives and in the eyes of the media.

The lesson from this statement, the lesson from the Garda campaign against Sergeant McCabe and his family and the lesson from State and Government complicity in this campaign is as follows. People who challenge this State or any of its pillars, or seeks to shine a light into dark corners to demand justice or truth should be prepared for an onslaught. They should be prepared to be ignored, sidelined and treated with suspicion. If that does not work, they should be prepared to have their careers and personal and public lives destroyed and the very worst slurs attached to their name, with all the power that the State has to enforce this.

This is why the Charleton tribunal is so important and why it must be empowered to turn every stone necessary. The lesson so viciously taught to the Irish people must be learned. The suffering of Sergeant McCabe must be undone. In so doing this saga must be ended and with it the corruption it covered up. The tribunal must be allowed to bring out the truth and identify the real offenders and conspirators from the lowest garda right up to the Cabinet table if necessary.

I again commend Deputy Ó Laoghaire on this. We need the terms of reference amended. Deputies have listened to the McCabes' testimony; this country is corrupt.

Deputy Carol Nolan

I appreciate the opportunity to speak on this very important issue. It is a shame that we are still discussing the issue. The events of the past week have raised serious questions regarding the culture in the Department of Justice and Equality. The fundamental question is why the documents at the heart of this controversy were not discovered much earlier and sent to the Charleton tribunal. It has become very clear that without questions being raised in this House and the subsequent tabling of motions of no confidence, these documents might never have appeared before the tribunal.

Our motion, and I commend my colleague, Deputy Ó Laoghaire, on putting it forward, is very simple. We call on the Dáil to agree that the terms of reference of the Charleton tribunal need to be amended in order that the Minister for Justice and Equality and the Department officials are explicitly included. The possibility of a deliberate failure to disclose central documents by both the Department and the Minister needs to be examined. The motivation for any such action must also be examined in fine detail.

The fact is that this trawl of documents was done by the Department in order to ensure that all relevant documents were disclosed to the tribunal. It was not done, as it should have been, to ensure that justice was given to the McCabe family. If justice for the McCabe family was a priority, which it should have been, a trawl would have been carried out much sooner. It was merely done to avoid a general election and save the political careers of Fine Gael Deputies and perhaps even Fianna Fáil ones too. It makes a mockery of the tribunal. The Taoiseach's suggestion of a review of the Department of Justice and Equality to be carried out by an official in his Department is laughable. We need to get to the bottom of this scandal and an independent investigation needs to be done. We need to ensure that we have the full facts and establish the truth as to what went on in the Department.

I call on all Deputies to support this motion in order that this work can take place and the McCabe family can see justice once and for all.

An Leas-Cheann Comhairle

One minute remains in this timeslot. I call Deputy Munster and she will have one minute and one minute only.

Deputy Imelda Munster

We have brought forward this motion to ensure that there is a particular focus put on the Department of Justice and Equality and the Minister through the inclusion of this in the terms of reference of the Charleton tribunal, given all that has come to light recently. Despite the fact the Government has said that all those mentioned in our motion are already included in the State entity clause, we believe that making specific reference to the Minister and Department officials would strengthen the tribunal and that it would and should be a welcome statement of intent on the part of the Minister and the Taoiseach.

We also propose to add a clause relating to the possibility of a cover-up, suppression or a deliberate failure to disclose central documents on behalf of the Department. We are all aware of what we have witnessed in recent days. A non-politically minded person might say that it is hard to credit what has come to light recently, but it is not. I refer to a Minister allowing something like this to happen; doing nothing to stop a nasty, ugly orchestrated smear and character assassination campaign of a person who was attempting to highlight wrongdoing; a Minister failing to challenge powerful agencies which were orchestrating that smear campaign against a whistleblower; and a Minister who was happy just to let it happen, to turn a blind eye, but why is that the case? It is because a Minister is confident of not being held to account.

An Leas-Cheann Comhairle

Thank you, Deputy.

Deputy Imelda Munster

It is because a Minister is confident of getting away with it. It is because a Minister is confident of the Government's support, just as the former Garda Commissioner, Nóirín O'Sullivan, was confident of Government support.

An Leas-Cheann Comhairle

Will the Deputy please obey the rules of the House? The Minister of State, Deputy Stanton, is the next speaker. Sinn Féin Members can come back in later and the Deputy can ask for time in the next timeslot.

Deputy Imelda Munster

The only reason the Minister would oppose this motion is to continue to protect wrongdoers and to sacrifice a whistleblower in an effort to keep the lid on things. That is the only reason a Minister would oppose such a motion.

Minister of State at the Department of Justice and Equality (Deputy David Stanton)

As the Minister, Deputy Flanagan, has outlined, the Government is opposing this motion on two primary grounds. In the first instance, it is not clear what the party proposing the motion intends should be done or where the current terms of reference are, presumably, deficient. Second, the Government believes the terms of the reference of the tribunal, which this House agreed to last February, are sufficiently broad to cover the matters that have arisen in recent days. I might add that the Government fully supports the work of the tribunal and has co-operated with it and will continue to do so.

In coming to this view, the Government is having regard to terms of reference [e] and [h], which provide as follows: paragraph [e] mandates the tribunal "To investigate whether the false allegations of sexual abuse or any other unjustified grounds were inappropriately relied upon by Commissioner O'Sullivan to discredit Sergeant Maurice McCabe at the Commission of Investigation into Certain Matters in the Cavan/Monaghan district under the Chairmanship of Mr. Justice Kevin O'Higgins". Paragraph [h] requires it:

To investigate contacts between members of An Garda Síochána and:

— Media and broadcasting personnel,

— members of the Government,

— TUSLA,

— Health Service Executive,

— any other State entities,

— or any relevant person as the Sole Member may deem necessary to carry out his work;

relevant to the matters set out in [a], [b], [c], [d], [e] and [f] ... [of the terms of reference].

These paragraphs contain mainly allegations that senior gardaí sought to discredit Sergeant McCabe.

The combined effect of these terms of reference could be viewed as encompassing examination of any communications between the Department of Justice and Equality, Ministers for Justice and Equality past and present, the Attorney General's office and An Garda Síochána regarding "legal strategy", which is presumably what the motion before the House is concerned with.

Furthermore, it is not entirely clear what is meant by "recent revelations" in the motion. This is rather opaque and it is not at all clear as to what any additional terms of reference might contain, nor is it clear what they mean in the context of a tribunal which was appointed to examine matters of urgent public importance.

Last week the tribunal issued a public notice in which it stated that it would sit from Monday, 8 January in relation to those terms of reference dealing with the allegations that senior gardaí sought to discredit Sergeant Maurice McCabe. The public notice made it clear that the tribunal is mandated by paragraph [h] of its terms of reference to investigate contacts between members of the Garda and members of the Government and any relevant person, among others, which it considers necessary to carry out its work. This notice also set out in broad terms how the tribunal intends to approach this aspect of its work.

I want to make one further comment in regard to the tribunal's notice but before doing so I remind the House that my Department, having carried out a search of email correspondence following the tabling of a number of parliamentary questions, itself recovered the emails which have generated such controversy and which led, wrongly in my view, to the Tánaiste having to resign as Tánaiste and a member of the Government.

Those emails have been disclosed to the tribunal and it is now for the tribunal to decide how to proceed in regard to them. Let me be clear about one thing: my Department has complied fully with the discovery orders issued to it by the tribunal. Discovery orders were issued by the tribunal in February, April and September. These orders were complied with and the relevant documents were forwarded to the tribunal in February, May and September 2017.

For the benefit of the House I can say that the discovery orders concerned records of the O’Higgins commission of investigation, documents related to two cases which had been considered by the independent review mechanism, a copy of a representation to the then Minister which referenced Sergeant McCabe, a report of a Garda Síochána Ombudsman Commission, GSOC, investigation into a complaint that a Garda investigation of an alleged serious assault was not properly carried out and records related to the allegation of contacts between the gardaí and Tusla regarding Garda Keith Harrison.

The Department has also made extensive voluntary disclosure of other matters, including three protected disclosures, reports from the Garda Commissioner under section 41 of the Garda Síochána Act and, most recently, the two email threads that were uncovered following a trawl of documents in the Department.

However, having regard to recent events, I know that both the Minister, Deputy Flanagan, and I would be very happy to have the Department undertake any further inquiries or further scrutiny which may be required. I have no evidence of any outstanding issues. I would be happy to raise this with senior officials in my Department tomorrow.

In the course of his statement in this House yesterday evening, the Minister, Deputy Flanagan, undertook in response to a question from Deputy Harty to establish the position regarding discovery made by my Department to the disclosures tribunal in respect of Keith Harrison. I am advised that the Department of Justice and Equality has complied fully with a discovery order made by the tribunal in the context of its inquiry into matters covered by term of reference [n] investigating contacts between members of An Garda Síochána and Tusla regarding Garda Keith Harrison. The tribunal announced last week that it would be publishing its report on that module this week.

In light of that, it was clearly open to Mr. Justice Charleton to indicate in the tribunal’s public notice whether the tribunal considered that its terms of reference were broad enough to allow it to investigate the matters which have lately been the subject of comment in this House and outside. No such suggestion was made. I should mention in this regard that the legislation covering the operation of tribunals allows for the terms of reference to be amended either at the request of the tribunal or following consultation with the tribunal.

I am convinced, in the circumstances, that the best approach is to allow the tribunal to get on with its work unburdened with unnecessary amendment of its terms of reference. Mr. Justice Charleton has been very assiduous in his work to date and the House owes him a debt of gratitude for the expedition with which he is going about the job. In that regard I have no doubt that if he determines that the terms of reference are inadequate to allow him to investigate the issues thoroughly and reach solid conclusions, he will bring that to the attention of the Clerk of the House.

Accordingly, I oppose the motion before us.

I have been working with the Department of Justice and Equality for quite a number of years in my previous role as chairman of a committee and as a Minister of State.

Obviously, the Department is not working. I do not think any agency or Department is working to the extent that it cannot be improved. It is true that the Department of Justice and Equality has made some mistakes. The Minister, Deputy Flanagan, made a comprehensive speech to that effect in the House yesterday evening. I ask Deputies to reflect very carefully on their language. I take issue with some of the language I have heard used with reference to the Department of Justice and Equality during this afternoon's debate. Deputies should reflect carefully on their espousal of hysterical populism, which is very different from an expression of frustration about certain failings.

The Department of Justice and Equality is a vast Department. In my experience, its staff are hard-working and diligent public servants. They are citizens of this State who are loyal to this State. They work extremely hard. In other jurisdictions, the areas of responsibility of our Department of Justice and Equality are divided among two or even three departments. Our Department has grown and grown for historical reasons. Issues like insolvency are often dealt with by the Department of Justice and Equality and can become very big. I have responsibility for the question of refugees and asylum seekers, which started off as a small issue a number of years ago but has now become a vast issue and is continuing to grow. The Department now has many more agencies than it previously did.

We have to look at what has arisen in this respect. I refer to the size and volume of work being done by hard-working and diligent civil servants who are citizens of this country. They are very careful about the work they do. They work very hard. They often go above and beyond the call of duty. I have said that here previously. I know them and other Deputies here know them as well. We should be careful about casting aspersions. Instead, we should be looking at how we can change matters to improve the efficiency of the Department and ensure mistakes and errors of this nature do not occur again. Steps are being taken to get to the bottom of the issues that have arisen. The tribunal of inquiry is probably the strongest method we have in our armoury to get to the bottom of such issues. We should leave the issues to the tribunal. That is what we set it up for. That is its purpose. We need to let it get on with its job. We may have other actions to take when it reports. I thank the House.

Deputy Peadar Tóibín

Ba mhaith liom mo chuid ama a roinnt leis na Teachtaí O'Reilly agus Quinlivan sar a chríochnaíonn an Teachta Ó Laoghaire an díospóireacht.

An Leas-Cheann Comhairle

Tá sé sin aontaithe.

Deputy Peadar Tóibín

The State created a falsehood around Maurice McCabe. That falsehood was that he was a paedophile. Furthermore, elements of the State sought to base an entire legal strategy around this falsehood. They codified a lie as a legal strategy to destroy a man who was asking honourable and decent questions. The manner in which they did so was calculated and cold. We are faced with the reality that it was not just one person who set out to destroy Maurice McCabe. It might not even have been one organisation. It looks like three different institutions had a hand in the efforts to destroy him. There are serious questions to be asked about the role of the Office of the Attorney General in this regard. One of the emails that were discovered recently shows that the Department of Justice and Equality discussed with the Office of the Attorney General the legal strategy for the case and whether the Minister could intervene.

Up to now, most of the focus has been on whether the then Minister should have intervened and on whether she knew. My party has dealt with those issues. It concerns me that the Minister and the Office of the Attorney General both knew about the strategy and seemed to be fine with it. I will remind the House of the details of the strategy. It involved calling a whistleblower a paedophile in order to destroy him. The Office of the Attorney General knew about this. It discussed the strategy and sat down with the Department of Justice and Equality to weigh up its pros and cons. It seems that elements within the Office of the Attorney General accepted it. The only reason we know about all of this is because Maurice McCabe had the foresight to record his meeting with two gardaí. That tape is the only reason Maurice McCabe's reputation is not in tatters. The only variable that was not expected by the people involved in this was the variable that saved Maurice McCabe's reputation. This incredible act of brilliance and self-preservation has shone a light into the darkness at the heart of the State.

Deputy Louise O'Reilly

I commend Deputy Ó Laoghaire on the introduction of this motion. The events of recent days have refocused the minds of many people on the problems in the Department of Justice and Equality. Nobody inside or outside this House has contradicted the contention that such problems also exist at the highest levels of An Garda Síochána and indeed at the heart of the Government. All of that was borne out in the treatment of Maurice McCabe. Following the revelations of the extent of these failures, there needs to be a full examination of the role of officials in the Department of Justice and Equality, current and former Ministers for Justice and Equality, the Office of the Attorney General and An Garda Síochána. We believe the information that has come to light in recent weeks raises serious questions about the institutions of the State, the protagonists in this affair and the scope of the terms of reference of the Charleton tribunal. Given that the terms of reference failed to catch information which was subsequently put into the public domain, we find it impossible to believe they can be considered fit for purpose.

Most people who have been watching and reading about what has happened over the past week believe certain documents and information were specifically suppressed or deliberately not handed over to frustrate Mr. Justice Charleton's work. There is a belief that the restrictions on the documentation that could be handed over, and on the scope of who could be called before the tribunal, were deliberately contrived to limit the findings and somehow arrive at a pre-ordained result. If this is the case, it is imperative that this motion passes in order to ensure public confidence is restored. It has shocked the Irish public to the core to learn that when a sitting Minister was made aware that the Garda Commissioner adopted a strategy of questioning the motives of Maurice McCabe by trying to smear him by means of a completely false allegation that he was a child abuser, she did nothing about it. If the terms of reference are not broadened to take account of the recent revelations, I fear we will be back here to have the same conversation again. This is not about a head on a plate; it is about procedures, accountability and doing what is right by whistleblowers.

Deputy Maurice Quinlivan

The events of the past week have highlighted serious failures in the Department of Justice and Equality and in the Government. It is worrying to see how badly the dysfunctional Department and the Government have acted on this issue. This crisis has been exacerbated by the behaviour of Fine Gael, which has completely denied that there is a major problem here. The resignation of the former Tánaiste yesterday was the right decision in light of emails that revealed that she, and the Department she headed at the time, had far too close a connection with the legal strategy of the Garda Commissioner against Maurice McCabe. Leaving aside the issues with the strategic communications of members of the Government in recent days, it is alarming that these emails have come to light as a result of this controversy and were not passed to the disclosures tribunal in February when it called for all relevant documents to be submitted. If Members of the Oireachtas had not persisted and RTÉ's Katie Hannon had not kept on top of this issue, I doubt very much that these emails would ever have made it to the tribunal. Given that the Department of Justice and Equality set up the tribunal, it is even more unbelievable that these documents somehow remained hidden for many months. Many more questions on this issue remain to be answered. The resignation of the former Tánaiste does not answer them. It is just not believable that these emails were accidentally missed.

Deputy Donnchadh Ó Laoghaire

I thank all the Deputies who have spoken on this motion. I regret that we have not been able to discuss the full motion we initially submitted. It was a more comprehensive motion, but there were procedural issues with it. It set out the specific changes to the terms of reference that we are advocating. It is unfortunate that some of the issues that would have been raised during a discussion on the actual changes we are proposing have perhaps been missed during this afternoon's debate. I refer, for example, to the additional areas that would have been taken in.

We have full confidence in Mr. Justice Charleton. We believe he has the right attitude and the right approach. We expect that he will pursue everything possible right up to the lines of the terms of reference he has been given, but he cannot go any further than that. He cannot consider matters that are outside the terms of reference. We have suggested changes to the terms of reference in light of facts that were not really considered at the time of their setting. All parties had an input into the process of setting the terms of reference. We have no problem with the process that was used. The additional facts that have emerged need to be taken into consideration.

We are proposing that the tribunal should be allowed to investigate the knowledge of officials, advisers and Ministers. At present, it is confined to investigating the knowledge of the former Garda Commissioners, Martin Callinan and Nóirín O'Sullivan.

The key point related to the possibility of a cover-up, of suppression, or of deliberately not forwarding documentation on to the commission, which is a very serious issue. I challenge the Minister to find any head in the current terms of reference which would allow that to be investigated. There is none. There is no head which allows that to be investigated. I will return to that point.

I am disappointed with the approach of Fianna Fáil. It seems that while much of the sentiment was positive, there is perhaps a desire to draw a line under this issue. That should not happen. There are clearly ongoing issues with the Department of Justice and Equality. It is difficult to explain many of the issues which have come up. I welcome the support of the Green Party, the Labour Party and a number of the Independent Deputies. I greatly respect the opinions of Deputies Clare Daly and Mick Wallace. I pay tribute to their work on this issue which they carried out when few others were paying attention to it. I also acknowledge the presence of Deputy John McGuinness in the House. I differ in my analysis of the terms of reference, however. There is a clear difference in what we are proposing in respect of issues which were not anticipated at the time.

There is the issue of what the Minister knew, what she was responsible for and how much she knew about the legal strategy, but there is also the very serious matter of the withholding of relevant information from a tribunal, which is a criminal offence under the Tribunals of Inquiry (Evidence) (Amendment) Act 1997. It is a criminal matter for good reason. Some of the documentation which was most central to this issue and which made reference to the Minister was held by some of the most senior officials in the Department, by the Minister herself and by her key political team. For some reason, while 230 documents were found, these documents were not. It is not difficult to see why we, the public, or the media would see that as quite suspicious or as being problematic. It is possible to dispel that suspicion. In order to do that, the tribunal should be allowed to consider the matter.

The Tánaiste and the Taoiseach have said that they have no fear of the truth. If the truth is to emerge, this must be looked into. The review to which reference has been made will largely be an administrative effort. It will be carried out in private. These are serious matters which are very closely connected to the subject matter of the tribunal. Again, I challenge the Minister to identify a single head in the terms of reference as currently outlined which would allow Mr. Justice Charleton to look into the possibility of a cover-up, of suppression, or of the deliberate withholding of information. There is none. That is why we must revise the terms of reference.

Question put.

An Leas-Cheann Comhairle

In accordance with Standing Order 70(2), the division is postponed until the weekly division time on Thursday, 30 November 2017.