I welcome the Minister to the House.
Office of the Attorney General: Statements.
Acting Chairman
Limerick East): I thank you, Sir, for affording me this opportunity to make a statement. There are a number of aspects of the Fr. Brendan Smyth case which are currently and properly matters of public concern. Everybody in the case understands these concerns, as I do, and I share them.
There is, however, one aspect of the Fr. Brendan Smyth case in respect of which it is not possible to place all of the available information in the public arena. I refer to the inquiries which the Taoiseach is conducting into the seven month delay in the handling of the extradition warrants and the subsequent and separate delay in handling correspondence between the Belfast solicitors and the Office of the Attorney General about the victims of Fr. Brendan Smyth's crimes.
The Taoiseach must be scrupulously fair in conducting his inquiries. That includes giving all concerned an opportunity to comment on the available information before he comes to a view as to what action, if any, he might appropriately take. He is pursuing his inquiries expeditiously, thoroughly and in a measured way, taking into account the legal and other advice available to him. He has undertaken — and I repeat this undertaking — that when his inquiries have concluded he will fully inform the Oireachtas of all relevant details of the entire matter. I respectfully ask Members of the Seanad to share in the Taoiseach's commitment to ensuring that fair procedures are scrupulously adhered to. Every individual is entitled to his or her rights.
May I now turn to other aspects of the Fr. Smyth case. It has been said that it was naive to appoint Mr. Dermot Gleeson, SC, to the post of Attorney General because of the fact that it was not publicly revealed that before his appointment he had advised a number of clients, including an official of the Office of the Attorney General. The official concerned has now authorised the Attorney General to confirm that the only subject upon which he was consulted was the following. A threat had been made or was about to be made to summarily remove the official in question from his position. The consultations related to the rights which the official would have to resist or challenge such summary removal, the steps which might be taken to challenge any such summary removal and what other courses were open to him. The consultations did not involve any detailed discussion of the Smyth case.
As those who are legally qualified will know, it is a general principle that even the fact that someone has consulted one is confidential to them. Where a conflict arises, as when one is asked to advise on one side of a controversy where one has already advised on the other, it is of course necessary to disclose this fact to the other party affected. It is not, however, the entitlement of a barrister of solicitor to make public even the fact that he has been consulted by any person in a general way.
For these valid professional reasons it would have been inappropriate for the Attorney General to reveal his limited professional relationship with an official from the Office of the Attorney General publicly — for example, to the subcommittee of the Select Committee on Legislation and Security. The subcommittee did not ask the Attorney General for legal advice. It did not need to do so since it had its own legal adviser. What it did seek from the Office of the Attorney General were documents. These were furnished speedily. The full unedited file was shown to both of the senior counsel who acted as advisers to the subcommittee. The decision on which documents should be excluded from the subcommittee was made by the Attorney General in consultation with two highly experienced professional barristers in his office who had no preceding connection of any kind with the Smyth file.
The subcommittee did seek to try to persuade the Attorney General that additional confidential documents should be disclosed. The Attorney General set out plainly the reasons for excluding these documents, and these reasons and the documents themselves were independently assessed by the subcommittee's legal adviser, an eminent senior counsel chosen by the subcommittee itself. There can therefore be no question but that the Attorney General behaved properly in his dealings with the subcommittee. In so far as documents are concerned, the selection of the documents was on the advice of two outside senior counsel, but the whole file — everything in the Fr. Smyth file — was handed over by the Office of the Attorney General to the legal advisers to the subcommittee and they were able to vouch to the subcommittee that there was nothing relevant to the inquiry in the file which the subcommittee was being deprived sight of. This is a very important piece of information and those who charge Dermot Gleeson, SC, with concealing information have not adverted to it.
The Taoiseach selected Mr. Gleeson for the post of Attorney General because he believed and continues to believe that he was the best qualified person for the position. Given the size of the Irish Bar, it is probably fair to say that the sort of person likely to be selected for the post of Attorney General by any Taoiseach might be conflicted in a number of matters. There are well established procedures for dealing with such conflicts and they are being applied in this instance. The cases in which conflict for the Attorney General arises would range from personal injury cases, where he may have acted for a plaintiff who was hit by an Army lorry, to much larger matters. The latter are very small in number.
The workload in the Office of the Attorney General comprises litigation — where, in any event, in every case that goes to court he will have independent barristers — and all kinds of advisory work. This includes advising on the constitutionality of legislation that is being proposed or drafted, advising on international agreements, contracts which the State is about to enter into on commercial matters, potential liabilities of the State which may never give rise to litigation, the manner in which EU directives on a whole range of topics might by implemented, controversies about State property and involvements with charities. Well over 1,000 files have been reviewed by the Attorney General — some of them only very briefly — since he has taken office, and the number of cases in which conflict has been detected is less than a dozen. By reason of the nature of his practice it is fair to say that in most cases, but not in every case, these tend to be litigation matters of substance. In every one of them the State would in any event be obtaining independent counsel and in almost every case this would be a senior counsel.
The engagement of independent senior counsel by the State is standard practice. The State does this, not just in matters of litigation, but where advice on specialist areas — human rights, commercial contracts, financial services legislation, environmental questions, constitutional issues in legislation — are concerned. It was and is the Taoiseach's view that Mr. Gleeson was the best man for the job. The fact that he had once advised an official of his office was not and is not a reason for not appointing him to the job.
What was and is important is that the right person was selected to preside over the reform of the Office of the Attorney General, a matter which the three parties to the Government's policy agreement agreed should be given a high priority. Fundamental changes are being introduced in the operation of that Office so as to make it a modern and fully effective branch of the Government's service. Modern information and management systems are being introduced, measures to improve the efficiency of the legislative process are being carried out and under the able direction of Mr. Dermot Gleeson no stone is being left unturned to remedy deficiencies that have been clearly identified and admitted.
I appreciate the courtesy shown to me this morning. I look forward to the debate and am happy to answer any questions Senators may have if an opportunity is available for me to do so at the end of the debate.
I welcome the Minister's attendance here, which enables the House to make statements on this important constitutional issue — the constitutional aspect is the crux of the matter. I have no interest in political point scoring or recriminations. Comparisons between what has happened now and what happened before are of no relevance. I will not indulge in anything which would be seen as an attempt to mete out the same medicine to this Government as to the last. What I am concerned with are the constitutional implications of this debacle.
Yesterday the Taoiseach consistently stressed it was essential to adhere to due process and fair procedures — how right he is. That obligation applies in the relationships between a citizen and every other citizen, between citizens and their employers, among employees, and between citizens and corporations. In the range of relationships in this State, those fundamental principles apply. It is not new that they should apply in a case of this nature, but there is something new and unique in this case which makes the Taoiseach's appeal to due process and fair procedures inane and irrelevant.
The Attorney General is not simply any citizen. In our Constitution, he has a specific and mandatory role. It is not discretionary and cannot be left aside at the whim of a Taoiseach who decides to conduct investigations in which the Attorney General might have difficulties. We should take note of the mandatory terms in Article 30 of the Constitution, which provides:
There shall be an Attorney General who shall be the adviser of the Government in matters of law and legal opinion[.]
Anyone who knows what "shall" means in legal terminology, whether in a statute or the Constitution, knows this is mandatory. The Attorney General shall be the adviser to the Government, not a private solicitor or barrister recruited to give opinion when the person mandatorily obliged under the Constitution is not available to do so. That type of arrangement is contrary to the obligations under Article 30.
In case there are any doubts, it is as well to note that the Article goes on to state the Attorney General "shall exercise and perform all such powers, functions and duties". We should examine the reality of that obligation on the Taoiseach and the Attorney General. It cannot be lightly cast aside by reference to a statutory provision, which the Taoiseach mentioned yesterday, as much to confuse as anything else, if I may make that observation. When I heard him yesterday I could not understand what provision of the Civil Service Regulation Act, 1956, he thought changed the powers or roles of the Attorney General or the relationship between the Attorney and the Taoiseach. Section 2 (c) states:
The Taoiseach may delegate to the Attorney General the powers exercisable by him [namely the Taoiseach] under this Act as the appropriate authority in relation to officers of the Attorney General and if he does so, then so long as the delegation remains in force,
(i) those powers shall, in lieu of being exercisable by the Taoiseach, be exercisable by the person who for the time being is the Attorney General, and
(ii) and that person shall, in lieu of the Taoiseach, be for the purposes of this Act, the appropriate authority in relation to officers of the Attorney General.
In other words, the Taoiseach may delegate to the Attorney General powers which are the Taoiseach's to delegate; but that has no effect on the powers of the Attorney General, which must remain with the Attorney.
The Taoiseach's powers in relation to personnel, on which he seems to rely, are no more and no less than any other Minister in the Cabinet. As a result of this constitutional mess, which should have been foreseen and has come home to roost, we find the Taoiseach setting himself up as a quasi-judicial functionary with appropriate powers. This is evident from his statement to the Dáil yesterday and the Minister's contribution this morning. The Taoiseach wants to ensure he can examine whether an official acted appropriately or should be subject to sanction and make a conclusion, having gone through fair procedures.
There is obviously a great confusion of roles in this matter, but it is worrying that the one person charged under the Constitution to give advice to the Government and exclusively mentioned as the person who must do so, the Attorney General, is not and cannot be available to advise the Government because of a conflict of interest. Is it not self-evident that this constitutional conflict should not arise, but it was clear it could and probably would arise at the time of the appointment of the Attorney General?
I make no comment on the personalities involved because that is not relevant. I happen to know all the personalities concerned as colleagues, including Official A, who was a former colleague on my circuit. I may be the only person in the Houses of the Oireachtas who can claim that, because of my professional association with those involved in this sad debacle since last November. I am not interested in that but I am interested in the issues.
The Attorney General, under the mandatory conditions in the Constitution, is the named defendant in any civil action against the State; another Minister may also be named, but the Attorney General is always involved. At the time he took office there clearly was the prospect of proceedings being brought, if they had not been brought already, by the people or the parents of those affected by the delay of warrants. It was the only option they had unless the State conceded the claim, and I understand the State has formally denied liability. In that event the Attorney General will appear as the named defendant. Is it not extraordinary and unacceptable that the Attorney General is not available to defend certain elements of the case?
What then happens? A private lawyer is recruited to give an opinion when the Attorney General is charged to give it himself. Let me make it very clear that I am not saying it is not the practice for senior counsels' opinion to be sought and given on the request or direction of the Attorney General. I am one such senior counsel and the standard formula of the letter which one receives from the Chief State Solicitor's Office is "I am directed by the Attorney General to instruct you in relation to [such a matter] and to ask you to advise...". The Attorney General does the instructing to seek the advice. The situation now is that the Attorney General is left outside while the Taoiseach can seek private advice, which puts the position in total and utter conflict with the fundamental function of the Attorney General.
The Minister made a rather helpless and specious attempt this morning — I am not saying deliberately so — if he has to rely on the fact that people have been involved in representing the State in motor car accidents and so on. I am that man, as is almost every senior counsel in the Law Library. Is the Minister seriously suggesting that that is on a par with a known and anticipated claim against the State arising from what would be perceived or represented as — I am not saying it was proven — delays or negligence on the part of the Attorney General's Office? There is no such comparison and it is both facetious and specious to suggest that there is.
(Limerick East): The Attorney General has no conflict in respect of compensation, he is handling that.
We will come to that during Question Time. There are huge gaps in that kind of argument. I find it very strange that the Attorney General has no conflict in respect of compensation because if the Attorney General is compromised and cannot deal with the issue of the delay of the warrants because it appears that he advised Official A in that regard, it would seem reasonable that the possibility cannot be dismissed — far from it, try telling some senior counsel acting for the plaintiffs — that that is inevitably and inextricably interlinked with the actual consequence of the damage to the plaintiffs. The delay which followed subsequently is inevitably and inextricably interlinked with both the delay in the warrants and the delay of correspondence. That is a matter with which any senior counsel acting for the plaintiffs will deal, and a matter for a question and answer session.
I know every one of these gentlemen and have a very high respect for them. The Taoiseach stated, as did the Minister this morning, that there is a very limited panel from which to select. However, Fine Gael are not short of — and I do not say this with any sense of bitterness or envy as I am talking about good personal friends and colleagues of mine — a plethora of established senior counsel in the Law Library. It is an offence to the rest of them to say that only one——
(Limerick East): The point is that they all have conflicts.
Of the same magnitude?
(Interruptions.)
The Taoiseach made the point yesterday that a very limited pool was available. However, there are many eminent names in the Fine Gael family tradition in the Law Library, such as the chairman of the Bar Council. I know and respect them, as I do Dermot Gleeson, but it is wrong to imply that only one was so pre-eminent that he had to be appointed when the likelihood of the conflict which has given rise to this mess was obvious at that time. The Taoiseach knew it, as did the potential appointee as he disclosed it to the Taoiseach, but he chose to ignore it. In addition to the normal conflicts which the others would have in ordinary civil cases, this series of claims, including the major Goodman claim against the Department of Industry and Commerce and the issue of the legal fees, were all known at the time of the appointment.
We now have a situation where the Constitution, which is the only guarantee we have and which sets down the guidelines, is being cast aside. Independent private legal advice — which I should respect as — although I doubt it — I might have been that senior counsel——
The Senator might have been.
That is going to be given precedence over the mandatory function of the Attorney General under this Constitution. That is why I regret and deplore this horrible morass, which has been a direct consequence of the Taoiseach's lack of constitutional awareness and political judgment.
I welcome the Minister to the House and I compliment Senator O'Kennedy on raising the issue to a high constitutional level. We need to put all this into context and ask if this is a real crisis. I do not think it is. If one talks to people on the street, nobody believes there is a crisis. There is a great deal of huffing and puffing in the other House and in the media but people outside to whom I have talked and listened do not see what it is all about.
There are two very good tests of whether it is a real crisis. Over the past number of years, back to the time of the arms trial, whenever there has been a real crisis here the place has been inundated with foreign media who could smell trouble and a real story. One could not walk from here to Kildare Street without being stopped by BBC, UTV, ITV, Dutch radio, Austrian television and so on. One might even meet Deputy Kemmy on the plinth if there was a real crisis. Today, there is zero interest outside — the foreign journalists came, took a look and realised there was no story; this is a bottle of smoke. There is so little interest in what is happening that one could walk in here today without having one's photograph taken.
We have to make the judgment, not the journalists.
They would have to go to America.
The circus is out of town.
Those who are objective and can look with clear eyes have said that there is not a crisis. There is an even bigger test; it is not possible to have a crisis without Charlie Bird being present, and he has not been here.
Something as important as this should not be treated so frivolously.
On more serious matters, one of the charges made by the Opposition yesterday is that there is an absence of openness and accountability. Yesterday, the Taoiseach stood for two and a half hours in the Dáil and took every question which was thrown at him — silly questions, real questions and questions which were full of repetition — and he gave a full answer to every one. If standing up in a House of Parliament is not being open and accountable to the people through their representatives, then I do not know what accountability is.
It is what one does when one stands up.
It is what one says.
The Minister who was here today is willing, as Ministers in other Administrations were not, to answer every question. I am sure that genuinely good questions will be asked by the Opposition and they will get the same full and open answers which the Taoiseach gave yesterday. That is an example which we have not seen in Irish Parliaments before now, where the Taoiseach and his Ministers have said "Ask us anything you want, we will answer you unscripted in the full view of the people". We do not have anything to worry about when it comes to openness and accountability.
The Taoiseach and the Minister stressed fair procedures. We have had some bad experiences with that. The previous leader of Senator Dardis's party, acting in good faith as Minister, was involved in the dismissal of a civil servant. It was found that the procedures were incorrect——
In fact, it was the retirement of a civil servant.
He was involved in the early removal of a civil servant. It was found that due process had not been followed. Nobody would wish a Taoiseach and Government not to follow due process. However, with regard to the person in question, are we to act as a kangaroo court? Mr. Matt Russell has been mentioned by Senator O'Kennedy. Everyone knows that Mr. Matt Russell is the person concerned. Mr. Matt Russell was widely blamed at the time of the earlier controversy; yet Mr. Russell came in and for over two days answered every single question the Committee on Legislation and Security could throw at him. Not a glove was laid on him. No case was made against him. Is he then, simply because people do not like what they believe he used to be or because people genuinely feel outraged, to be a scapegoat? If there is a case to be made, he at least is entitled to due process.
It would be terrible if either House, under media pressure, became a sort of kangaroo court where a person was deprived of his good name and his right to a fair hearing before the full facts of the case became clear. It is a tribute to the integrity of the Taoiseach, Deputy Bruton, that he will not be rushed on this, that the rights of this person are as important to him as any other rights and he is not going to preside over what might be a miscarriage of justice which might have very serious implications for the State at a later date. That took great courage and integrity. It would be much easier to follow the popular course in all of this. The Taoiseach has nothing whatsoever to be ashamed of. He has been principled in what he has done, and it has been in the public interest in a very real sense.
Various specifics have been raised. I will not deal with them in any detail because the Minister will deal with questions later. The issue of the letter must be dealt with. Of course it should have been answered. Nobody for one second is saying that that letter should not have been answered; that was inexcusable. The reason why it was not answered must be established as accurately as possible. There is, however, a difference — I do not say this in mitigation — between a letter which indicated that damages would be sought and an extradition warrant for somebody who was a potential danger to young children. Let us be clear on that. Nobody is seeking to excuse this, but there is a very real difference between the two omissions.
Yesterday the Taoiseach dealt fully with the question of the Attorney General advising the committee. The independent lawyers to that committee had full access to the file and saw everything in it. The file was not made public for very good reasons. The names and addresses of the victims were in the file. Its publication may have made impossible or prejudiced a possible future case against Fr. Brendan Smyth. These reasons were totally valid but the independent legal advisers, two men of the highest competence and integrity, as I am sure Senator O'Kennedy will agree, saw the file and acted on behalf of the committee. They were satisfied that nothing was concealed from them and that the Attorney General had no other role in all of this.
The Minister has already and I am sure will deal further with the whole question of conflict. Unless we draw our Attorneys General from, say, the law schools of the land — even there they may well have been advising on particular cases — it would be impossible to find a good senior counsel who would not have to deal with conflicts of interest between his or her career as a senior counsel and his or her position as Attorney General. Only one Attorney General in 70 years that I know of — perhaps I am wrong in this — did not come from private practice. I speak of the late Professor John Kelly. Any senior counsel who is worth his salt or her salt as Attorney General will have been involved in major cases. It is because they are the best that they have been involved in major cases. There will inevitably be conflicts.
If, for example, Senator Dardis's good colleague and my good friend, Deputy McDowell, had been made Attorney General in a Fianna Fáil-Progressive Democrat Government, he would be, to use a word which I do not accept, equally compromised. He has been involved in a huge number of major cases, usually of a fairly noisy and litigious kind, but that would not lead me to stand up here and say that he was compromised. There are devices for dealing with these conflicts and, as the Minister said this morning on "Morning Ireland", it is only a conflict when one is faced with a real case. Any lawyer taking up that office has dealt with many cases. Senator O'Kennedy was Attorney General.
No, I was not. I was the only one who declined the office. I have that constitutional distinction, if it is a distinction.
Sorry, my apologies. The Senator was offered the position.
I declined it.
That was our loss. Anybody who has been around will have to face this particular conflict and there are procedures for dealing with it. The Minister will deal with all of these questions in some detail later if he is asked them. Even if he is not asked them he will deal with them.
Unlike the Taoiseach.
Unlike the Taoiseach, who said he would only deal with questions he was asked. Is that the difference between the Minister for Health and the Taoiseach?
Is that why the Minister for Health is here today? Is it because he is willing to answer questions?
(Interruptions.)
So we do not have to ask the right questions.
It is like asking de Valera. The Minister looks into his own heart and knows what we are thinking.
Finally, there is the question of Mr. Dermot Gleeson. Many people on both sides of the House have known Mr. Dermot Gleeson for a long time and very few would disagree that he is simply the best senior counsel in the business, that he is a person of total and utter integrity, accepted by all.
In fairness to other senior counsel, that is a bit too absolute.
He is certainly playing at the top of the premier league.
That is fair enough, but many others are too, and some of them have a very definite blue tint.
They might be offside.
The party opposite had no shortage of legal hangers-on for many years. They are to be seen around the House wearing fur collars. There is very little crisis here. The questions are being answered in an open way. The Minister and the Taoiseach have been accountable to the Houses of Parliament, which is appropriate. The Minister is here as a token of that openness to answer any questions which may be put. When all of this passes away the Taoiseach will be seen to have behaved in a principled way and in a way which defended the rights of due process but also ensured that the public got the fullest possible information.
I wish to make a number of points, all closely related. The first issue is the broader one. The way we are moving in Irish public life regarding political correctness will create a huge block down the line. I am more concerned about the long term implications of the debates in these Houses and public life over the past week than I am about aspects of the current situation which have been referred to. It is important for the sake of the public to deal with this terminology of conflict of interests and compromise and to make it quite clear that it does not carry any judgmental baggage, that a conflict of interests is simply that. It is a recognition of a conflict. The way the word has been thrown around in the media, it is as if somebody was trying to sneakily get away with something or as if somebody had been found in a compromising situation. It is in that context that we need to clarify things.
I see no conflict whatsoever between the Attorney General's previous life as a senior counsel and his current position as Attorney General. There are areas of conflict of interests which arise in the normal discharging of his responsibilities in both positions and that has been handled correctly. The idea that we might give the impression to the public that it would be possible to appoint an eminent lawyer to the position of Attorney General without having potential areas of conflict is wrong; it would be impossible to do that. Any successful functioning lawyer in the courts will obviously have put himself or herself into areas of potential conflict of interests. That is a fact and it is a waste of time to discuss it further.
By not dealing with that issue, we are doing a disservice. We are now reaching a situation where fewer and fewer people are being attracted into public life. When Dermot Gleeson was appointed Attorney General I dropped him a note to thank him for making himself available at what is clearly a reduction in income to take this job. I did that because I recognised what he had done. It is a commitment to public life which must be recognised. There is a lack of recognition in the country at present regarding the value of public service. As public representatives, we should ensure, in having this type of debate, that we value and are seen to value the commitment of people who make sacrifices in order to contribute to public life.
Hear, hear.
This is crucially important, and I speak as an Independent. There are jobs in public life to which I feel I could make a contribution, but I would refuse to accept them because I am not prepared to make the sacrifice. I have given some consideration to this area and I recognise what Mr. Dermot Gleeson did in taking on the job. I wish to make this point clear in the context of my overall contribution. The same point applies to the Coveney affair last week. We must be careful to find a balance in public discussions on such issues.
Senator O'Kennedy developed another point at some length. I agree there is a conflict in the phrase in the Constitution that the Attorney General shall exercise all powers and functions. The same conflict arises in the 1956 Act, but more so in the Ministers and Secretaries Act, 1924. This also gives certain powers to Ministers and Secretaries, but it would be impossible for them to individually discharge every single one. The Constitution was not written with the intention of creating that type of conflict, but it requires clarification. I agree with Senator O'Kennedy that it is possible to interpret the words as meaning the Attorney General must carry out every aspect of that job. However, I do not think that was ever intended.
Or delegate outside his office.
It allows for the function of delegation and this must be examined.
This is outside the Office of the Attorney General, not privately or the Taoiseach.
The position of the Attorney General is not the crucial and central issue in the debate. In representing teachers, I deal with both sides of the issue of child abuse on a monthly basis, involving people who have been accused of it and its victims. This area is a total and utter mess at every level of the State at which it is handled. I am prepared to take some responsibility in that regard. I have tried everything possible to address this issue in the area I know best, but I have failed to convince people in the Department of Education and elsewhere of the need to deal with these matters on the basis of balance between the welfare of the alleged victim and the potential damage to the reputation and career of the alleged abuser. We have reached the point in Irish public life where an allegation in the area of child abuse can be too readily seen as a judgment.
I do not want this point taken out of context because we have also experienced a situation on the opposite side where right wing conservative reactionary types — of which there are fewer on the ground — attached to various religious organisations would have had us believe until a number of years ago that there was no such thing as child sexual abuse, wife beating or anything else of that nature in Irish public life. We have, at least, moved beyond that but we still have not found the middle point.
The delay in dealing with the victims' letter is central to this matter and it gives out all types of wrong signals. It raises once more the questions I raised previously regarding the operation of the Office of the Attorney General, after which Opus Dei contacted me because it felt I was being unfair to it and those related to it. Many people are interested in this area and I wish to make two clear points.
I do not accept that the Taoiseach handled things correctly by not bringing information in relation to the question to the notice of the Dáil seven hours earlier. In a Freudian way, the Leader's statement that the Minister will answer questions he was not asked goes to the core of this matter. I was disappointed by the Taoiseach's approach and I was even more disappointed by the way in which he handled the issue on "Morning Ireland" yesterday. At this stage the Taoiseach should say that perhaps he could have handled it better.
I do not want to deal with personalities — I am speaking as an independent observer — but it was badly handled. The next time this matter is discussed I will add a judgmental qualification, but I do not know enough at present. However, I am certain that it was badly handled and that people listening to the Taoiseach yesterday morning were in no way reassured and ultimately felt they were worse off at the end than they were at the beginning.
Perhaps the Minister could reply to my second point, that we should know how long the Taoiseach intends to take in carrying out the investigation into the delay in replying to the letter from the victims' solicitors. This is crucial, and we also need to know what is taking place. I wish to put this point in the context that I would be the first person in the House to insist and demand that the principles of natural justice are applied in an investigation within an office which could possibly lead to a reprimand, demotion, suspension or dismissal. I am fully aware of this aspect and I support and commend the Taoiseach for ensuring that this would be the case.
However, I also want to be convinced at the end of the process that the argument about applying the principles of natural justice was not simply an attempt to procrastinate. The Minister must reassure the House at the conclusion of the debate and the Taoiseach must convince us when his report is available that what he did was in the best interest of all concerned. It must be demonstrated that he maintained a balance between rights on either side and that he was not procrastinating but giving due despatch to the process of the investigation. This needs to be done and nobody understands due process better than the people in that particular Office.
In terms of trying to pull together all the aspects of this matter and moving it forward by examining what is required and where we go to next, I have one overriding worry — it is not connected to political parties and I made a similar point to the last Government. I have a huge concern in as much as I no longer believe it is coincidental that all these delays are related to questions and matters of child abuse. I am choosing my words carefully, but I want to be clear that there was no question of any type of cover-up. I am not talking about covering up the reputations of politicians and those in high public office, but that a wider net of people do not in some way have an influence in this area. I make this point with great reluctance, but I am worried. I do not believe in coincidences, particularly when they come rapidly from the same place and relate to the same area. Why do these delays revolve around the area of child abuse? There seems to be some force at work to ensure delays in dealing with these issues. It may be the case that this force is just a coincidence of influences, but I will pose this question when matters reach a conclusion.
I ask the Minister to reassure the House at the conclusion of the debate. The issue of standards in public life involves much more than who made a telephone call to whom or whether there was a conflict of interest in a case which somebody might have handled two or three years ago. Standards in public life mean that people have confidence in their public representatives and in the structures over which such representatives have authority. I ask the Minister to bear this in mind. I thank him for coming to the House and I appreciate the opportunity to raise these points.
May I share my time with Senator Sherlock?
Is that agreed? Agreed.
I welcome this debate and, in particular, its format in that we will have time for questions and answers at the end. The most useful role we in the Seanad can play is to try to shed light rather than heat on the situation. We have all had an opportunity to sift through the various statements, questions and answers in the Dáil over the last few days. We need to try to extrapolate and clarify the central issues.
It is appropriate that I should raise the question of whether there are similarities between this situation and the one last November. There are certain similarities in that both concern the Attorney General and his office, the Fr. Brendan Smyth case and delays relating to it and the withholding of certain information from the Dáil by the Taoiseach. It is important that I state categorically that, in my view, there are no similarities of substance between the two situations. On each occasion delays relating to the Fr. Brendan Smyth case began the controversy.
It has to be stated clearly — it has been done by people on all sides — that there is no acceptability about such delays. The first delay was more serious in that it related to the processing of the extradition of Fr. Smyth and his continued presence in the community. The second relates to a delay in replies to letters sent to the Attorney General's Office by the solicitor acting for the relatives of the victims of Fr. Smyth. This is appallingly insensitive to the trauma of people seeking justice in a horrible case.
Senator O'Toole is right to raise the issue of the signals sent out to the public on delays in any issue which relates to child abuse. This is all the more reason the whole question should be fully investigated, the public informed and the office of the Attorney General reformed so that such situations cannot arise again. It is appropriate that this central issue should be raised and I commend Senator O'Toole for placing such importance on it. Child abuse has rightly become a major preoccupation to all of us and must be addressed. I am pleased it is the Minister for Health who is in the House today to answer questions for us. We should not underestimate the concerns of the public that, somehow, child abuse is part of the issue here. We should not allow this to cloud the fact that the issue must be addressed and investigated properly, with due process and with care taken of the rights of individuals.
On the question of full information not being given to the Dáil, the situation and reasons are entirely different to that of last November. In that case trust had broken down following a Cabinet decision to promote the then Attorney General despite the absence of Labour Ministers and their expression of nonagreement with that decision. The subsequent withholding of information from the Dáil related to issues which were substantive to the delay in extraditing Fr. Brendan Smyth and the information was also withheld from one of the Government partners at that time.
In this case the leaders of the other two parties in Government were aware of the relevant information from the beginning. The Taoiseach has explained why he did not give that information to the Dáil. I do not question his judgment that the individuals concerned have a right to fair procedure and a fair judgment with all the facts being assessed together. This has been clearly explained. The Minister went even further in explaining that to even indicate that the barrister was acting for the person was, in effect, not denying him clear process and procedure. This is clear; it has been explained clearly by the Taoiseach and I accept his explanation.
The Taoiseach is dealing with the issue himself with independent legal advice because of the previous relationship between the Attorney General and the official involved in the earlier delay in the Smyth case. There is a legal precedent which was indicated on radio this morning and by Senator Manning. This obliges the Taoiseach to adopt this course of fair procedure. I think that in natural justice the person is entitled to have all the facts examined in a coherent and inclusive way and be given the opportunity to comment, as indicated by the Minister this morning. It is of the utmost importance that the Oireachtas and the public should be informed fully and in detail as soon as the Taoiseach has finished this investigation and made his decisions. This is the salient point. It is entirely appropriate and fair that we should wait until that investigation has been carried out fairly and with the rights of everybody concerned taken into account before we expect that full information.
The question of whether the Dáil Select Committee on Legislation and Security should have been given that information has been dealt with adequately by the Minister and I am sure he will deal with it when replying to questions. The committee had its own legal adviser and the file was available to it. These are two very salient points.
I would not presume to have the knowledge Senator O'Kennedy has of the Bar Library or his ability to interpret the Constitution but we have all read it. The specific case in which the Attorney General had a barrister-client relationship with the individual concerned is very specific and narrow and, in my view, the broader issues of constitutionality raised by Senator O'Kennedy do not justify the point he has made because of the very specific and select nature of that relationship.
There are some questions on which we are all agreed. The delay in replying to the letters from the relatives' legal adviser is unacceptable and must be investigated and dealt with. We are also agreed that the Taoiseach should put all the information fully on the public record as soon as his investigation is complete. On the question of the Attorney General's performance in office and his work in reforming the structures, technology and operations of his office, I do not think anybody doubts the work he has done, and is doing, and its importance.
There is complete trust, confidence and support between the Taoiseach, the Tánaiste, Deputy Spring, and the Minister for Social Welfare, Deputy De Rossa, on this issue. The withholding of information until due process has been carried out has, in my view, been explained and justified and I await those investigations and the Taoiseach's full disclosure of the facts. In those circumstances I think we are throwing light on the issue but I believe we should wait until due process has been carried out before we expect that further information.
I thank Senator O'Sullivan for sharing her time with me and I welcome the Minister. We are not dealing with a political problem but an administrative one and it will not be resolved until there has been a thorough reform of the Attorney General's Office, including a root and branch review of the Ministers and Secretaries Act. The challenge facing us is to ensure our administrative procedures are amenable to public decision making. The programme, A Government of Renewal, is committed to reforming the Office of Attorney General and transforming it from a secretive institution to a modern and fully effective public service.
In this regard I commend the Taoiseach's action not only in revealing a potential conflict of interest with respect to the Attorney General but also in undertaking to carry out the necessary review himself. He has displayed the kind of hands on attitude which was so absent in the previous Administration. I recognise the Attorney General's openness in acknowledging the potential conflicts of interests prior to his appointment.
Most dispassionate observers will readily admit there are few parallels between the events being debated today and those which led to the collapse of the previous Administration. The present Government is led by a Taoiseach who has consistently placed accountability at the centre of his actions and is advised by an Attorney General whose reputation and behaviour are beyond reproach and who has consistently given this Government sound and considered advice, as demonstrated most recently in the abortion information Bill.
The most salient difference, of course, is that this Government is founded on trust while the previous Administration was dogged by successive incidents in which one partner tried the patience of the other partner to its limits. The passports for sale and the Arcon cases and the Fr. Smyth fiasco were just the last in a series of breaches of trust which eventually caused that Administration to collapse in disarray, from which Fianna Fáil has still not recovered.
The political mudslinging tends to obscure the public interest. It is in the public interest to discover how a letter sent on behalf of Fr. Smyth's victims could have laid in the Office of the Attorney General for nearly six months, apparently without being drawn to the Attorney General's attention. The events of last November were debated exhaustively during the inquiry conducted by the Select Committee on Legislation and Security and its report comprised nearly a thousand pages. When the statements and counter statements in that report were stripped of their rhetoric, we were left with the bare facts of the case — a Catholic priest abused an as yet unknown number of children both from the Republic of Ireland and Northern Ireland. The authorities in Northern Ireland issued a warrant for his extradition and that warrant was allowed to gather dust in the Office of the Attorney General for seven months.
It is perhaps unfortunate that the Select Committee on Legislation and Security was unable to reach a conclusion with regard to the background of these events. Had it reached a conclusion, we might more readily be able to understand the letter from the solicitors acting on behalf of Fr. Smyth's victims, which has apparently been withheld from the present Attorney General. I do not wish to prejudice the outcome of the inquiries currently being carried out by the Taoiseach, nor do I wish to impugn the integrity or competence of any officials pending the outcome of the Taoiseach's inquiries. Speaking in general, however, I find it unacceptable that a civil servant should be in a position to withhold material information from a chief legal officer of our duly elected Government. There has been much talk since last November of openness, transparency and accountability. What I find most disturbing is the lack of accountability on the part of senior civil servants.
I should, of course, re-emphasise that the overwhelming majority of our civil servants are conscientious and highly qualified individuals, who in many cases have made considerable material sacrifices by entering public service rather than private enterprise. We owe it to our public servants, as well as to our democratic institutions, to make all branches of the Civil Service fully accountable to the public and its representatives. That is the real heart of the issue in this debate.
I thank the Minister for extending to us the courtesy of attending this debate and answering our questions. I will begin where Senator Sherlock left off, on the matter of openness, transparency and accountability. These words have now joined the lexicon of other devalued words. They have been devalued by these series of events, if not beforehand. In their devaluation, there is also the wider devaluation of politics and the public service in its widest sense, which was dealt with by Senator O'Toole.
My difficulty with this matter is to do with the context within which it takes place, the fact that it is not unprecedented and that there are similarities between this event and the events which took place last November. How can it be that someone who could adopt a particular position when in Opposition last November can see no inconsistency whatsoever, when it is on the Government side, in adopting a totally different position? Is it the case that the legal refuge of due process is now being used just to procrastinate, defer, deflect and get rid of criticism? I want to know when the Taoiseach will come to the view which he expects to reach? The Minister said that when the inquiries are concluded the Taoiseach will then come to a view, but when will the full details of this case be revealed?
There has been since the beginning, at its most charitable, a marked reluctance to reveal information to the Dáil. It is that reluctance which, as much as anything, has led us to this point. If it takes six months to reply to a letter in an office of Government, can we have any confidence that a matter such as this can be dealt with expeditiously? We must remember the victims of the offences which were committed by the person involved in this matter. That has to be the bottom line, and somebody somewhere has to take responsibility.
It may be inappropriate to deflect everything onto the Attorney General when the responsibility ultimately lies with the political masters and the Government. Mr. Gleeson was correct to disclose what he had to say to the Government before he was appointed to that office. I would not expect anything else of the man; that was his duty. What I do question is the circumstance in which that appointment was made. It is not only a single incident where a conflict arises. There was a potential for many more conflicts. One has only to look at the beef tribunal report to see this potential.
Senator Manning colourfully made the point about the absence of the assembled horde of press on the plinth and outside the gates of the House. They are not there because they do not expect the Government to fall. If they expected this, they would be there in numbers; and Charlie Bird would fly home from wherever he is to attend on the plinth so he could interrogate us as we leave the building. The reason they are not there is because there will be no election, which raises a further question. While I accept what was said about the absence of trust leading to the difficulties with which Deputy Reynolds fell on his sword, how can the Labour Party adopt that position at the time and now adopt a totally different position? I find a marked lack of consistency here.
Senator O'Kennedy made a point about the political affiliations of the members of the Bar. Of course, we all know that it has different political affiliations, but I suggest to Senator O'Kennedy that the brotherhood of the Bar transcends all political difficulties. That is a greater unifying force than anything else I am aware of in Irish society.
It is good to have some unifying force.
It also raises the question of whether the law is the last refuge of scoundrels?
The second last.
Do we, when the pressure comes on, resort to the law as a vehicle for procrastination?
The other matter that was raised concerns asking the right question before an answer is given. Of course, this comes to the heart of our democratic process. It is disingenuous to suggest that information should only be given on the basis that the correct question is asked in the correct way and at the correct time and that otherwise information will be withheld. It is certainly the case that information was withheld both to my colleague, Deputy O'Donnell, and to other Members of the House. I do not see the distinction, in terms of the gravity of the offence, between information being withheld on what is allegedly a minor matter and on what is allegedly a major matter. It is a serious matter to withhold any information from a House of the Oireachtas. What I am saying explicitly to the Minister is that there must be no playing for time. The matter must be dealt with expeditiously. If due process is required, that can be done quickly.
A particular case in the then Department of Industry and Commerce was alluded to earlier. Under the 1956 Civil Service Act, the person could have been required to retire in the interest of the service. It was open to the Minister to do that and it was only because a compassionate approach was adopted that there was a subsequent legal case which the plaintiff won. That is by way of an aside.
We must concentrate on the victims and they must be the priority. Senator O'Sullivan made that point, and she is right, but somebody somewhere must take the blame. It is unconscionable that six months should elapse before a letter on a matter of this enormous gravity was replied to.
I welcome the Minister and thank him for coming to the House. I would like to share my time with Senator Magner.
Acting Chairman
Five minutes each. Is that agreed? Agreed.
I congratulate the Minister on his openness in coming to the House and answering questions. It is a welcome development that Ministers are prepared to answer questions from Members of the House in an open and fair fashion. This reflects what happened yesterday when the Taoiseach went into the Dáil and was prepared to answer all questions with no time limit. This development is welcome and augurs well for democracy in the country. We had experience of this before when then Minister, Deputy Coveney, came into this House and answered questions. It was productive and satisfying for all who attended.
I hope that will not set a precedent for the present Minister.
I am sure it will not. Everybody accepts that fair procedures must be followed and this is the key issue on which much of the debate turns. As somebody who was involved in industrial relations for over 20 years, I am only too conscious of the dangers of not ensuring fair procedures or going outside what are termed fair procedures.
Everything must be investigated, people must have an opportunity to respond to anything that is said, and people's right to their good name must be protected until there are issues which they must answer. Full investigations and the right of reply are crucial in any situation where people are involved. People's right to their good name is enshrined in the Constitution, which has been quoted so well and liberally this morning. We, as politicians, and the Taoiseach have a duty to ensure that the good names of those involved are protected.
The delay of six months in replying to the letter is unacceptable, but it is not unique in the legal area. I am always amazed at how long it takes in the legal area to reply to letters and bring cases to court and to finality. This is a special case and the length of the delay is not acceptable; but in the legal area, it is not unusual. When one makes comparisons between November and now, we must accept that there is a difference between a letter claiming damages for the victim of a paedophile and a decision on a warrant to extradite a paedophile. The obvious difference is that in not deciding on such a warrant, somebody who committed a crime is free when they should be taken into custody and extradited.
I fully agree with Senator O'Toole's statement about the commitment of people like Dermot Gleeson to serve in public life and expose themselves to public questioning and the public arena. It is important that people of the calibre of Dermot Gleeson are attracted to serve the public and the country. Everybody must accept that the Attorney General's Office needs modernising and shaking up as there are problems there. It is also accepted that Dermot Gleeson is one of the best people to do that because of his experience, study and knowledge of technology.
The contributions in this House since the debate was led off by Senator O'Kennedy have been measured and of a very high standard as against the rather raucous and political debate that took place in the other House.
My first point is one I made in November, when the Labour Party were having serious difficulties with our partners in Government, Fianna Fáil, and it is one which relates back to Fr. Brendan Smyth. Every political party in this House shares in equal measure the sense of outrage and reprehension at any sexual abuse of children. It would be the highest priority that any action that could be taken by Government would be pursued with all dispatch, and that view is shared across the political spectrum. I echo my own leader in this House, Senator O'Sullivan, when she said that there is absolute and complete agreement and trust between the leaders of the parties which make up this coalition Government. Unfortunately, that is in marked contrast to the November situation.
Words like "compromise" and "conflict" have been used in relation to the position of the Attorney General and are capable of being misunderstood by the general public. Senator O'Kennedy said that there are many people to choose from in the Law Library, but nonetheless the number is very small. As Senator Dardis said, it is also an exclusive club. The Government can either go down to that august institution and inquire as to who never took or was offered a brief in their entire legal lives and on that basis select that person as Attorney General, because there could be no possibility of conflict; or, as the Minister said, it can choose somebody considered to be pre-eminent in his profession. If one makes that choice, one inevitably has to allow for the fact that in a country as small as ours that person would in one way or another have been involved in cases in which the State may have a present or future interest. If any possible conflict is disclosed, I cannot see how any difficulty could arise.
In relation to the response of the Taoiseach in the Dáil, if the Taoiseach is guilty of anything he is guilty perhaps of being over-zealous — if you want to look at it like that — in the protection of an individual's rights. I do not think anybody in this House or outside it would condemn him on that basis. If a person's rights cannot be vindicated by the political head of this country, where can they be vindicated? It is my belief that, as the Leader of the House said earlier, if it is not a bottle of smoke it is something approaching it. I can understand why people on the Opposition side would approach it in that spirit; the wounds are still there from earlier months. In one way the opportunity lent itself to the sort of raucous debate that took place in the Lower House yesterday.
I commend the Leader for setting up this session of the Seanad in such a way as to invite from the Opposition whatever points and questions they have. In fairness to the Opposition, they accepted that this was the vehicle by which they wished to pursue it, and this House has contributed more to the atmosphere of examining and probing than the Dáil. Perhaps in future the Government might look on this House as the proper venue for having these sort of investigative debates. Perhaps also, as Senator O'Sullivan said, we should have a bit more light than heat.
Ar dtús, cuirim fáilte roimh an Aire go dtí an Teach. On other occasions the subject of debate is more straightforward but I thank the Leader for arranging this debate. It is a good system.
It is no wonder politicians are losing credibility. If the present Government had said straightaway when this story broke that they had made a mess of it and that the position was exactly the same as the last time, politicians would still have a little credibility. This is a carbon copy of what happened before and the media agree with that.
It is amazing for the Government to talk of accountability and say that whoever made this mistake in the Attorney General's Office must pay for it. When Deputy Albert Reynolds said the same thing — that he did not know what had happened in the Attorney General's Office — he was told that the buck stopped with him. The Government is making a scapegoat out of the staff in the Attorney General's Office, but it was making saints out of them when Deputy Albert Reynolds was on the rack. This is the sort of duplicity that makes politicians what they are today, and it is scandalous.
Of course, people have a right to their good name but that right was ignored by statements made in the Dáil. Members of the Lower House claimed at the time that there was information that would rock the foundations of the State and the Catholic Church but those statements were without foundation. Were those people, who are Ministers today, man enough to come back and apologise for the scurrilous and scandalous statements they made with no foundation? It is amazing to see how considerate those same people are about others' good names when they abused and publicly named people who were doing a good service for this country by working hard to create employment.
I cannot understand how a man of the calibre of the Taoiseach made such a mistake. Whenever any man is in trouble we sing about all his good points and abilities, but to me, all barristers are the same: if they win the case they are great, and if they lose it they are useless. That is the bottom line and that is what the people say.
That is a fair old yardstick.
In this particular case there is no doubt that we have an Attorney General who is terribly handicapped because he was a chief adviser to staff in the office to which he was being appointed. He was chief solicitor in the Goodman case. We are all human but how could this man divorce himself from all that and accept this appointment? There was a conflict of interest from the word go.
The only man on the Government side who has come well out of this so far on the Government side is Deputy Jim Kemmy who, admittedly, said he did not know, nor was his party told, about the conflict of interest. I have no doubt that if he had known about it and if the grassroots of the Labour Party had known about it, it would have been another story. That is my belief.
A great fuss was made about the Father Smyth case, and rightly so, but at the time that story reared its ugly head that man was under lock and key in Northern Ireland. Had the warrant been issued the first day he came into this country, would he be back in the North two years from that day with appeals and counter appeals? We know how the legal boys work. He was back in record time — in seven months — quicker than if he had gone through the political system. Maybe those people in the AG's office had their ears to the ground, knew exactly what was happening and knew that the quickest way to bring this man to justice was the way it was done.
However, there was no consideration for poor old Albert who had to take the stick for it all. Now we want to blame the AG's office. When this Government took over we were told it was going to be transparent and would operate as if it was behind a big, polished, sparklingly clean glass window. Since the Labour Party was not told what was happening, it is obvious that the big window must be opaque, very badly stained or fogged so much that it cannot be seen through.
Questions were asked in the Dáil. Who was told? The media was told before the Oireachtas. I wonder if the media will be told over the weekend that, suddenly, we have all the answers. Deputy Albert Reynolds asked for one hour to get clarification of a question, but the then Opposition would not agree to do so. I am glad that the present sensible and realistic Opposition has given the Government a week to come up with the answers. That is being responsible, but when Deputy Albert Reynolds was in power the then Opposition was not responsible. They could not dig up enough dirt, which was of no significance, to hang on the Government.
According to page 6, column 7, of The Irish Times today:
One of the reforms which Mr. Gleeson is responsible for implementing in his office is a top priority for any cases dealing with child abuse. The Taoiseach now says he is satisfied that this rule is being "scrupulously" followed but with one probable exception, namely, the follow-up correspondence in the Smyth case.
Surely when Mr. Gleeson went in there that was his number one priority, yet six months later letters have not been replied to, nothing has been done. Why? Was that not his number one priority? Was that not the job he was supposed to do? We are told he was told informally about this letter but, surely, if he was told informally about it he should have informed the Taoiseach, informally, to get something moving.
The Taoiseach says he is now taking over part of the Attorney General's job and is appointing delegates. As a matter of fact, he says he is going to carry out the inquiry himself. Does the Constitution allow him to do that? Can any politician do that? I would have thought that the answer was no. That was further misleading information. Only the Attorney General can delegate business and can appoint delegates. The Dáil held an inquiry. Specific information that was relevant and important was given in a sealed envelope to more lawyers. As Senator Dardis said, the lawyers are a breed unto themselves, with all due respect to them.
As is the Senator's colleague.
One cannot escape. There is also the high opinion of politicians.
The Senator is doubly cursed.
Acting Chairman
The Senator has one minute left.
The solicitors did not want their Attorney General to be embarrassed. That was a great miscarriage of justice. This was important information. It was a racket inasmuch as one could not say that one did not do it. It reminds me of asking the neighbour to come and help with the hay and he arrives in the gate as the rope is being tied on the last cock. One cannot say that he did not come, but he did not come to do any work. That is similar to the sealed letters being handed to the lawyers. They could not say that the Attorney General did not give them to the committee; however, they made sure that the committee would not read them. This is scandalous. The Taoiseach and the Attorney General have little option but to do the honourable thing and retire.
I am genuinely sorry about Deputy Coveney. On the one occasion I rang him I found him to be a real gentleman. He created a good impression when he visited Sligo. I am sorry that the present Government has set up a system that will make it well nigh impossible for any decent person to talk to anybody. We are reaching the stage where people in power will have to go around like zombies with their mouths shut.
Some of them go around like zombies with their mouths open.
I thank Senator Norris for allowing me, to share his time. Many comments have been made on matters about which I know little. I speak as an outsider and as a totally independent Member of this House.
There is an old saying to the effect that people can often do the right thing but give the wrong reason for doing it. There is an element of this in all that has happened over the last 48 hours. I have a problem. We have a Taoiseach who was elected — and whom I supported in the election — on the basis of his word about openness and accountability. I cannot reconcile that with the same Taoiseach standing in the Dáil — or perhaps he said it on the radio — and saying in answer to a question that he was not asked the right question. That smacks of the opposite of accountability and openness and I must question it. The perception, especially in Northern Ireland, is and will be: here we go again. If the Taoiseach felt he made a mistake in answering the question by saying that he was not asked the right question and if he made a mistake in using those words, he should stand up and say so.
I agree with what my distinguished colleague, Senator Wilson, said. The phrase that will be remembered is the statement by the Taoiseach, Deputy Bruton, that he was not asked the right question. That is not transparency. It calls to mind the words of George Herbert, the 17th century English poet, who said: "A man that looks on glass/ on it may stay his eye/ or if he chooses through it pass/ and then the heavens espy". The Taoiseach chose to stop his eye on the glass and that is not transparency. I will return to this a little later.
I have no difficulty with the appointment of Mr. Gleeson. The question of conflict of interest appears to be exaggerated in its importance by some contributors to the discussion in both Houses. I have a nodding acquaintance with lawyers. I think I can say I am the lawyer's friend — I am the most litigious person in this State. Lawyers are hired guns; that is part of their ethos. They will accept a brief on one side of a case now and they will argue precisely the opposite three years later in another case. If barristers were confined to the side on which they took their principal briefs in the first instance, they would be locked into an intellectually moral and professionally unacceptable straitjacket.
Presumably, when you hired the gun you provided the ammunition.
They were all blanks.
I do not have difficulty with the question of conflict of interest. However, I have some difficulty with the question of disclosure. This apparent conflict of interest should have been disclosed at the beginning. It was important to know about it, largely because Mr. Gleeson took on the function of Attorney General at a time when the Fr. Brendan Smyth case was still active. It was perfectly clear that his room for movement would be seriously circumscribed in that regard.
Secondly and importantly — although I might not have understood the implications in this area but I wish to ask a question about it — certain information and material were withheld from the committee of inquiry because of the professional relationship which remained undisclosed. I see the Leader of the House and the Minister shake their heads. If that is not the case it removes what I would have considered to be a substantial difficulty.
I wish to make another point. I hope to do so with sensitivity because I accept that the Taoiseach is seeking to secure a situation in which rash speculation and dangerous comment does not preclude further courses of action which might be necessary within the Attorney General's Office. There is one constant factor in all this — the activities or inactivities of a senior official in the Office of the Attorney General. I hope that matter will be thoroughly investigated. There is a type of suppurating wound in that Office and it has continued to fester. It will not be remedied until the performance of specific personnel within that Office is examined clearly and a detailed statement on the matter is given to the Oireachtas and to the public.
The delays have been consistent. It is astonishing that after all the difficulties, the collapse of a Government and the resignation of a number of senior State officials, there should subsequently be another six month delay in even acknowledging a letter. We all know, as politicians, that the first thing one does is send a holding letter saying that the information has been received in the post and that somebody is dealing with the request. Apparently, even that was not done. That gives rise to serious concern and worry on our part and on the part of the public. These continuing difficulties give politics a bad name.
There are extraordinary and dramatic similarities between what happened last November and what has recently transpired. Thus, one supposes, the whirlygig of time wreaks its revenge. I was rather entertained by some of the body language in the Dáil yesterday and the unusual sympathy with which the fine speech by Deputy O'Malley was received on the Fianna Fáil benches. There are clear similarities, but there are differences. In this instance the leaders of the two Coalition parties were informed of the difficulty. That is a significant difference. However, one has to wonder, in the light of all that was said about transparency and openness in Government, why the leaders of these two parties did not pass on that information at least to their own colleagues in their parties. It would have been welcome had they done so. It would have led to a greater respect for the profession of politics.
A number of questions have been raised in today's The Irish Times. The first was whether the Taoiseach showed bad judgment in appointing Mr. Gleeson. I do not think so. He showed bad judgment in not disclosing the difficulties with that appointment which could have been anticipated. The second was whether he should have made public Mr. Gleeson's legal relationship with Mr. Russell at the time of his appointment. Absolutely. Third, if Mr. Gleeson could not fully review Mr. Russell's performance, why did the Taoiseach wait from last December until the night before last to assume powers allowing him to do so?
We are also entitled to know when the Attorney General discovered that these unanswered letters were in a file in his office. In the light of the fact that we are told Mr. Gleeson, because of his prior professional arrangement with Mr. Russell, was precluded from acting in elements of the Fr. Brendan Smyth case, who was the officer in the Office of the Attorney General in charge of the inquiry into the delay in the case? It would be particularly serious if it was official A, Mr. Russell.
I thank the Minister for Health for his statement. However, I object to the fact and am disappointed that the Taoiseach is not here to deliver his own statement and to listen to the views of the House on this serious issue. I do not intend any disrespect to the Minister, who is well briefed and capable of responding eloquently and adequately to any points we may raise.
My objection is based on a legal point. The Attorney General is the legal adviser to the Government and the Taoiseach is the head of the Government. The client of the Attorney General is the Government as embodied by the Taoiseach. I will not criticise the Attorney General, because he does not merit any criticism and he is not here to defend himself. In principle it is wrong to attack anybody who is not here to enter into debate. It is the function of the Taoiseach who appointed the Attorney General to be here to explain all of the issues that arise concerning this incident and a possible lack of information communicated to Dáil Éireann. I express my regret and disappointment in that regard.
I also have a small degree of anger. At the time of the collapse of the last Government it was put to the former Taoiseach, Deputy Reynolds, that he was in control of a conspiracy; that he was deliberately hiding material facts and that he was somehow personally responsible for any delay which may or may not have occurred in the Office of the Attorney General. I hope the Minister will have the grace on the part of the Government to finally put the matter to rest and state there was no conspiracy on the part of the former Taoiseach, that there was no such deliberate attempt by the former Taoiseach and Government to conceal any facts.
There was the disgraceful event of a Deputy in the Dáil waving a purported letter that he said would shake the State to its foundations. That Deputy has so far, to use a legal phrase, failed, neglected or refused to bring a copy of that letter to the Oireachtas and make its contents known. Is it not about time the slate was wiped clean and the former Taoiseach was exonerated and vindicated? It is obvious that something is happening in the Office of the Attorney General that is separate from any function of the Taoiseach or of Governments past or present.
I mean no disrespect to the Minister, but his statement is totally inadequate. It fails to address the shortcomings in the Office of the Attorney General. It fails to set out the progress made, if any, in relation to the reform of the Office of the Attorney General promised by this Government. We are over five months into the term of the Government and we do not have a review, as was promised as a matter of urgency, into how the structures, functioning and finances of that Office were to be improved.
I accept there is a huge burden on the Office of the Attorney General. It is the chief legal office for the State. It instructs the Chief State Solicitor in many cases, in advising on counsel and other matters. It is responsible for charities. It no longer has the function of prosecuting crime in the name of the people; that is now the function of the Director of Public Prosecutions. It is in charge of international agreements. It is in charge of drafting legislation and many other important functions.
The Office of the Attorney General is hopelessly understaffed. This is a political problem which was to be solved by the Government, yet it has failed to address the problem. I ask the Minister to convey to the Taoiseach that we do not need a piecemeal reform of the Office of the Attorney General. We need to look at the entire functioning and legal provisions of the Office of the Attorney General. It is an important Office, but given that the Attorney General reports directly to the Taoiseach, the Office cannot defend itself. It must be defended by the Taoiseach. Has the Taoiseach something to hide? Why is he not here today? It is difficult for me to ask the Minister directly about the content of his statement, the facts of which come from the Taoiseach. On that note of disappointment, I call for a wide ranging debate on the reform of the Office of the Attorney General and express my deep concern and regret at the failure of the Taoiseach to be here.
The reason the Minister for Health is here is that I invited him on behalf of the House. The proposed arrangements are that the Minister will briefly answer some of the specific questions raised in the course of the contributions and leave the bulk of the time for questions from Members. Thus, the Minister will deal with some of the specific queries and then take questions from Members.
The questions will be specific.
Acting Chairman
Is that agreed? Agreed.
Limerick East): I thank Members for inviting me here today for this good debate and for the reasoned and reasonable contributions. A series of specific questions have been raised, which are extensive, but I will try to get through them quickly. Senator O'Kennedy quoted from the Constitution. If his interpretation of the Constitution is correct, then every Attorney General since the foundation of the State acted unconstitutionally. No Attorney General has had a hands on role over everything without briefs being allocated to other senior counsel and without people being brought in from time to time to give advice.
I did not make that point. The Attorney General briefs people everyday. I am talking about getting outside people. The Minister should not address a question which I did not put.
(Limerick East): The Attorney General is not precluded from dealing with compensation questions. We must remember that the Brendan Smyth file is in effect a closed one with the exception of the compensation question. He was extradited and sentenced in Northern Ireland. The particular committee of the House investigated everything, brought its conclusions before the House and a debate ensued.
There was a letter from a Belfast solicitor on behalf of persons who were abused claiming compensation from the State. That letter was received not after the new Government was formed, but a month before on 15 November. It is not a separate run under the new regime, it was part of the situation previously. It was not acknowledged or replied to, although it should have been. The Government was formed on 15 December, but the letter from the Belfast solicitor was received on 15 November.
The Attorney General is an eminent legal man, but there is no suggestion that he is the only one. A range of people would be suitable and could be appointed Attorney General. However, this Attorney General is good and is playing in the first division. From that range of top people, I suggest they all have conflicts of interest. We should look at the number of senior barristers involved in the beef tribunal. Yet this is an area where it is suggested that the Attorney General, Dermot Gleeson, is compromised or where he has a conflict of interest.
I needed quick legal advice in the Department of Health. A particular document was sent to a barrister, who read it; but he sent it back because he had a conflict of interest. We sent it to a second barrister, who was appointed a judge before he completed the work, and he sent it back again. We sent it to a third barrister, who also had a conflict of interest. We had to go to a fourth person. It was something which I regarded as a matter of urgency, but it took me ten weeks to process. There is nothing usual about people having many conflicts of interest.
I thank Senator Manning for his remarks. Senator O'Toole made an interesting point in that the way we use the words "conflict of interest" and "compromise" is not how they are heard colloquially outside the House. People believe that somebody is up to something if we say they have a conflict of interest. We are using terms which are in use in the legal profession and which are used here. There is a communications problem.
The question of why a conflict of interest was not announced has come again and again. Any barrister who becomes Attorney General will have dealt with many cases previously. It would be unreasonable for him to list all the cases he had dealt with over the previous five years.
He was active once.
(Limerick East): What is or is not active? Effectively, if we want somebody to announce a potential conflict, they must list everything they were involved in over a period of time. It is a potential conflict because a conflict does not arise until a particular case comes up. The procedure has always been that the Attorney General always declares the conflict at the point of conflict, not at the point of potential conflict.
The committee of inquiry had already been established.
(Limerick East): That was the procedure which was followed.
There was a conflict.
(Limerick East): There was no conflict with the committee of inquiry. The Attorney General advised Mr. Matt Russell on a narrow area. Mr. Russell was under the impression that the previous Taoiseach intended to summarily dismiss him and he looked for legal advice on one point — his rights under his terms of employment.
A number of Senators asked if information had been withheld from the committee of inquiry. The answer is no. Two senior counsel were retained by the Attorney General and they screened the documentation to see what would be appropriate to send. The exclusions were in two areas. The first was anything which would identify the identity of the victims and compromise their confidentiality or their ability to pursue legal claims subsequently. The second area was the particular document which outlined communications between the United Kingdom Attorney General and our Attorney General on the extradition proceedings. It was proper to hold that back also. As I said earlier, it is not generally recognised that the full file was sent to the senior counsel representing the committee.
We have all tried to co-operate and we should have time for the questions.
(Limerick East): Senator Norris asked this question and quoted from The Irish Times. Not only was the selection made under advice, but the full file was given to the senior counsel representing the committee. He screened it and advised the committee that there was nothing in the file which it did not have that was relevant to the inquiry it was carrying out. Those are the reasons it was done in this way.
The Minister said the delay in warrants issued in the Attorney General's Office was in effect a closed file. I find that extraordinary. The Taoiseach said yesterday that he has been examining that issue. How can the Minister reconcile what he said with what the Taoiseach said yesterday? The Taoiseach said yesterday that since last February he has been conducting inquiries into the seven months delay in the handling of extradition warrants. The more statements we hear from Government, the more contradictions we find.
(Limerick East): Senator O'Kennedy is having an argument.
I am not. I asked a specific question. There is a contradiction which the Minister should resolve.
(Limerick East): Senator O'Kennedy is making a speech.
I am not. I ask a question.
(Limerick East): The Brendan Smyth file was an extradition one. The extradition proceedings have concluded and he has been sentenced in Northern Ireland. I understand he is still serving a prison sentence. There are two items which are not extradition ones which run from that file. The first is the issue of compensation, which only commenced on 15 November when a solicitor's letter was received. The other issue is the delay in dealing with the file and the Taoiseach is investigating that. I am talking about the extradition file per se, which is a closed file.
The Minister should reconcile the position with the Taoiseach's statement. The Taoiseach said yesterday that he has been since last February conducting inquiries into the seven months delay in the handling of extradition warrants. I rest my case.
(Limerick East): That is exactly what I just said.
That is not what the Minister said.
(Limerick East): That is what the issue is now, plus the compensation. Senator O'Kennedy is twisting it.
Acting Chairman
Senator O'Kennedy has asked his questions.
I have three or four other questions.
Acting Chairman
I will come back to you.
This is unreasonable. We should have another five minutes.
Senator O'Kennedy wasted his time.
The arrangement was that questions would go around, which is fair. I want to put a brief question to the Minister. In the file which was given by the Attorney General's Office to the two independent barristers acting for the committee and from which they decided what should be made available to it, did that file include the communication between Matt Russell and Dermot Gleeson? That is the key issue.
Acting Chairman
If Senator Norris or Senator Dardis has a related question, I will take it now.
I am trying to decide if the independent people who had access to that knowledge gave permission for it to be given to the committee.
(Limerick East): As I understand, there was no written communication between Mr. Dermot Gleeson and Mr. Matt Russell.
Was there a telephone conversation?
(Limerick East): There were a number of telephone conversations and there was one brief face to face meeting. Senators must remember that Mr. Russell was getting advice in a private capacity on how he would proceed in certain circumstances from an attorney in private practice. It was not on a file because it was a private matter.
So no judgment was made on that by the incoming person?
(Limerick East): No, that was not on any file.
That is crucial information.
It has been proposed on several occasions that the declaration of a conflict of interest by the Attorney General was not unusual in that it would happen in the normal course of events. Can the Minister give us examples of other Attorneys General who were compromised in this way? When will the Taoiseach make a full reply? The Minister stated he would do so "when he finished his inquiries". When will that happen?
(Limerick East): As regards the first question, I cannot give examples, but I can give assurances that this happens. From my experience in this Government, if an issue arises in Cabinet where there is a conflict of interest the Attorney General declares the conflict in the same way as any Minister would. That was the procedure when I was in Government. A lot of legal advice which Ministers require would not go into Government. For example, if someone from the Department of Health wants advice, they will go to the Attorney General's Office and speak to him directly. If there is a conflict of interest, they must go outside and get someone else in the office to deal with it. From my experience of two other Attorneys General, conflicts would be declared in this way.
This debate is proceeding outside the House as if the main activity of an Attorney General was litigation and defence of the State. However, that is not his primary role. His primary role is to advise the Government on legal matters on a day to day basis and to scrutinise legislation to ensure it is drafted properly in accordance with existing statute law and the Constitution. Litigation is a small area.
Were the members of the Cabinet aware of that?
(Limerick East): People in the newspapers argue that because of these high profile cases, he could not do his job. However, this is a small area of his activity. He examined over 1,000 files, some of them trivial, and he had to declare a conflict in 12 of them. There is nothing unusual about that.
As regards time, I could say this will conclude on a certain date, but that would prejudice the process. We are not talking about months or a couple of days.
The Minister has been asked to reconcile certain issues. I ask him to reconcile the issue of principle. Is it possible to reconcile the Taoiseach's statement in the Dáil yesterday that the right question had not been asked with the following statement made on 17 November 1994 in relation to the resignation of then Deputy Reynolds as Taoiseach:
The lesson is that truth should not come out in instalments: the truth, the whole truth should be given on the first day and let the cards fall as they will after that. That is a good lesson for all of us who aspire to high office. It does not matter what happens at the end of the day so long as at the earliest opportunity one has told the truth. Let others manage the news once the truth is already on the table.
It is difficult to reconcile this — I am interested to hear if it is possible — with the type of spot the question argument we got. It almost sounds like a suggestion for an RTE panel game. It seems that while one must not lie in political life, one need not strive officiously to tell the truth.
(Limerick East): With respect, that is unfair to the Taoiseach, who has always been open. He spent two and a half hours yesterday answering questions. He is arguing that some of this is legal and some is political. The Taoiseach is arguing the political case with one hand tied behind his back because his legal advice is that certain questions cannot be answered. It is convenient for the Opposition to hammer a man with one hand tied behind his back.
The Minister knows all about it.
That did not operate in the last Government.
(Limerick East): The Taoiseach does not hold back information.
That is personal.
(Limerick East): He was making a point during questions and answers in the Dáil.
We made Mr. Harry Whelehan and Mr. Eoghan Fitzsimons available.
Acting Chairman
I call for order because there are four minutes left and three people want to ask questions.
(Limerick East): He made the point that the Opposition has duties as well and if people are not able to process supplementary questions properly they have a responsibility to——
We made the same point last November.
(Limerick East): When he replied to Deputy O'Donnell, he indicated that he had taken separate legal advice. Anyone with any sense would know that meant the Attorney General was not dealing with the file.
Is the Minister saying Deputy O'Donnell does not have any sense?
The Minister said there was a sharp distinction between a conflict of interest arising from the claim of negligence against the State in the normal course and a claim arising from alleged negligence in the Attorney General's Office. Is the Taoiseach suggesting — the Minister represents the Taoiseach and the Government — that the Government is on all fours? Are the fees for the separate legal advice which the Taoiseach sought payable from public funds or will the Taoiseach pay those from his private resources? If public funds are involved, the Attorney General should be held responsible.
Acting Chairman
Before calling the Minister to reply, I ask Senator McGennis and Senator Mulcahy to put their questions.
Did the Taoiseach and the Attorney General have consultations about the Attorney General's attendance at the committee of inquiry and, if so, what was discussed and what was the outcome? The Taoiseach said he has revoked the powers conferred on the Attorney General. Why did he do so on Tuesday at 9.30 if everything was above board and no conflict was involved?
The Minister will recall that at the time of the appointment of the current Attorney General, Mr. Dermot Gleeson, the Taoiseach made it clear that he only had one conflict of interest, his advice to the Goodman group. Given that a Government has fallen over the issue and that the Attorney General's Office needs to be reformed following its inefficient handling of the Fr. Brendan Smyth file, why did the Taoiseach not inform the people and the Dáil that there was a second conflict of interest between the Attorney General and Official A who, whether he liked it or not, was at the centre of the controversy?
(Limerick East): Senator O'Kennedy referred to negligence. However, I cannot pursue that aspect because of the ongoing process. I cannot answer it in such a way which does not cause difficulties for me.
There is a distinction between alleged negligence in the Attorney General's Office and that of any officer of the State.
(Limerick East): The Taoiseach has been reluctant to answer questions in this area.
It is obvious why he will not do so.
(Limerick East): I will not interfere with the process.
There is no answer.
(Limerick East): Senator O'Kennedy's question about fees is facetious. As Taoiseach, Deputy Bruton is retaining legal advice which will be paid for in the normal way. The same happens when Senator O'Kennedy is retained to prosecute for the Director of Public Prosecutions, who does not pay him from his own pocket.
Outside solicitors in private practice.
(Limerick East): Senator McGennis asked about powers. The Attorney General was not able to pursue an investigation until the work of the committee was completed in February. He sought legal advice at the end of February. In the meantime he had to run and administer the Office of the Attorney General. When matters are now reaching finality it is appropriate that the Taoiseach should take the powers of an administrative and personnel nature to himself for a short period of time so that he can deal with this problem. However, the Office could not be run on the basis that such powers were to be withdrawn from the Attorney General for a five month period.
Why withdraw them at all?
(Limerick East): He needs to deal with this specific matter about a specific official where there is a conflict of interest. This is the nub of the issue. It is only in that area that there is a conflict. Therefore, the Attorney General cannot deal with it himself, but the Taoiseach can do so.
Acting Chairman
It is now 1 o'clock and I call on the Leader of the House.
My first question was not answered and it is very important.
If the Senator will give way to me I will facilitate her. Sometimes it is hard to get a word in edgeways in the House. I propose that the Minister answer the questions which have been asked.
Acting Chairman
Is that agreed? Agreed.
(Limerick East): I have Department of Health questions today and I have not read the briefs yet.
We appreciate that.
Acting Chairman
I call on the Minister to conclude his remarks without further interruption.
(Limerick East): It is not correct, as Senator Mulcahy suggests, that there was an announcement that the Attorney General had only one potential conflict of interest. It was clear that he had represented Mr. Goodman at the Beef Tribunal and I understand Deputy Harney put down a question on this basis. The potential conflict was clear, but there was no actual conflict, because it was never his intention to act in any way on behalf of the Government in respect of any litigation with the Goodman Group. This has been in the public domain. It would not be proper for the Attorney General to list his clients and the consultations because the client has rights also.
This was exceptional.
Acting Chairman
No interruptions please.
(Limerick East): Any solicitor or barrister will advise that they are duty bound not to announce whom they are acting for. If I had consulted Dermot Gleeson, SC, 12 months ago I would not want him to announce the fact, because as soon as it came into the public domain people would ask what was I up to in that I had to engage senior counsel.
It was announced in the Dáil yesterday by the Taoiseach.
(Limerick East): I have gone through it several times. It is very hard to deal with Senator O'Kennedy because he does not follow the simplest of arguments.
He does. The Minister is not very quick to answer him.
(Limerick East): One does not announce a potential conflict; one announces at the point of conflict. That point has been reached now, so it is appropriate to answer it.
The Goodman conflict was mentioned in advance.
Acting Chairman
I call on the Leader of the House to move the suspension of the House until 2 o'clock.
I ask the Minister to respond to my first question.
I thank the Minister for his contribution today and I move that the House be suspended until 2 o'clock.
Sitting suspended at 1 p.m and resumed at 2 p.m.