Seanad Éireann díospóireacht -
Wednesday, 2 May 2001

Vol. 166 No. 8

Arms Trial Evidence: Motion.

Mr. Manning

I move:

That Seanad Éireann calls on the Government to set up a small independent expert group to collect all available evidence relating to the Arms Trial and the events surrounding it, to examine and evaluate such evidence, to put all such evidence into the public domain and to publish its own conclusions on the issues involved.

I welcome the Minister for Justice, Equality and Law Reform, Deputy O'Donoghue. The motion I propose is important, balanced and fair, and seeks only to make available in an ordered, structured and unimpeachable way all evidence on the arms crisis of 1969. It seeks to place in the public domain all the factors which led to the crisis as well as its issues, conflicts, contradictions and outcomes. It is not judgmental and its purpose is no more or less than, as far as is possible, to have all the facts placed before us. People could make up their own minds and if it was felt that important questions remained to be answered, a further, more formal inquiry could be established. I am astonished that the Government has tabled an amendment and even more astonished at its nature which is not only narrow and defensive, but also flawed and perverse. I will deal with it later.

In a House of Parliament in the year 2001 we might well be asked the reason we should bother with the arms crisis of 30 years ago. Is it not history and should not sleeping dogs be left to lie? The answer is that the arms crisis is one of the most important events in the life of modern Ireland and raises huge issues, but more than that, we now know what happens when we brush past difficulties under the carpet and fail to face the truth about ourselves. The arms crisis presents such a difficulty and shaped politics for years afterwards. Some of the questions raised by the crisis can be left to historians, but others have come back to haunt the present. Today, we live in a more open, transparent and accountable age and there is an obligation to present the past in as fair, a honest and full a manner as we can. In some ways, the reason we bother with the motion is as simple as that. Many questions arising from the arms crisis need to be answered. The key ones are fairly straightforward.

Was the arms affair, as the official view has long had it, an attempt to subvert the Government from within, an attempt by a cabal in the Government to defy the authority of the Taoiseach and, in effect, stage a coup d'état? Was it the beginning of a move to stir up sectarian division, destabilise the institutions of State and arm the enemies of the State? Was it such a threat that it took extreme measures to save our public institutions, salus populi suprema lex esto? Was the arms affair about a Government which had temporarily lost control, floundered about caught up in a crisis it was ill-equipped to handle, and which sought to save itself by engaging in damage limitation, including cover-up, suppression and tampering with vital evidence? Was it about a power struggle within Fianna Fáil as many suspected at the time, a struggle to gain control of the biggest party in the State—

Mr. O'Donovan

We still are.

Mr. Manning

—which looked as if it was set to remain in government for a very long time? Possibly, it was the Irish version of the Dreyfuss affair where the power of the State was used to target and destroy powerless individuals who were then forced to live out their lives as broken disgraced men. There is no Devil's Island here, but a situation where an all-powerful State covered up and tampered with evidence and engaged in the subversion of justice. Perhaps the arms crisis was a mixture of all of the foregoing.

These are serious questions which partly shaped the history of the 30 years which followed. They are questions we have a duty to address and answers will be provided. Fine Gael proposes a framework within which we can ask all these questions and perhaps receive some of the answers. Some have called for a judicial tribunal of inquiry, but I do not have to argue the case that it would be too soon, too expensive and too cumbersome and not the appropriate method to investigate these issues. There have also been calls for an Oireachtas committee of inquiry, but my view and that of my party is that such a committee would not be appropriate at this stage as the emotions are still too raw for many and some issues still have a tinge of vindictiveness or vested interest.

Fine Gael proposes the establishment of an expert group as set out in the terms of reference of the motion. Such a group would comprise – this is a question of detail, not principle – of a judge or retired judge as chairperson. Judges are used to examining detailed evidence, have a knowledge of the law and are expected to be, as their title implies, judicious in the way they handle matters. An experienced historian should be a member of the group because it is the job of the historian to go through archives, evaluate evidence and come to conclusions based on the evidence alone. The historian is dispassionate, cold and utterly respectful of the evidence. The group should include also a former civil servant, perhaps a former officer of these Houses, who would be aware of the detail of parliamentary procedure and the way in which Government and Parliament work. The group would not have to be limited to three such people and could include other appropriate experts and would obviously need a small number of assistants to help with its work.

What would the expert group do? The answer is simple and laid out in the terms of the motion. It would collect all the evidence. It would have access to the archive of the Committee of Public Accounts and trawl through all the archives deposited in the National Archives. That in itself is a job for an expert and would require more than hit and miss forays into the archive by individuals. It would trace papers not yet in the National Archives, but which are, almost certainly, in the Departments of Justice, Equality and Law Reform, Finance, Defence and Foreign Affairs and, possibly, the Department of Agriculture, Food and Rural Development. It would ensure, where necessary, the security of those still alive would be protected, invite those with private papers which might be of help to make them available and take statements from those who believe they can add to the information, including members of the then Committee of Public Accounts, former members of the Garda and the Army and those who may have something useful and helpful to say. It would then be its job to put the evidence in order and, if possible, evaluate it. All the evidence would then be placed in the public domain.

It may well be the case that when that was done we would still have widely differing interpretations of what actually happened. Those with strong and certain views are not always easily moved by evidence, sometimes never. That is life. That is normal, but, at least, there would be a body of evidence upon which conclusions could be drawn. The best definition of history is that it is what the evidence forces us to believe. The process, as I outline it, would, at least, produce as much of the sum total of available evidence as is humanly possible. We can ask for no more.

That is our proposal. When I made it originally in the House many in Fianna Fáil and the Progressive Democrats saw it as an opportunity to view the whole picture in context and in totality, but what we are currently experiencing is a drip by drip treatment of the arms crisis. Each new document becomes a sensation and there is a daily rush to judgment. Old scores are being settled, old sores reopened and hidden agendas played out.

As for the Government amendment, I can only see it as cynical and, in some ways, perverse. It will confine the inquiry to recent documents, but more than that, the examination will be carried out by the Minister's Department and the Attorney General's office, both of which were up to their necks in the events of 1969-70. It will be difficult for such inquiries, however well made, to carry real credibility. They should and must be handled by an outside source. There is no question of impugning the integrity of officials in either office, but in a sceptical world, Departments do not examine themselves. That is a job for an independent outsider. We, simply, have no way of knowing if the inquiries to be carried out will be as full as possible or whether reasons of security or departmental interest will come first. We do not know what files will be excluded or the competence of those who will carry out the inquiries. I am sure the Minister will assure us that the people concerned are of the highest competence, but we will have to take him on his word. In this day and age, that is not good enough. Everything is being done behind closed doors which, again, is not good enough. The exercise lacks all credibility.

Why is the Minister trying to limit matters? Why does he not accede to the request for a full inquiry as most of those involved on all sides of the controversy now say they want? Let his own inquiries go ahead, but enough has emerged to warrant a fuller, more open inquiry. That is all we are asking for.

I am disappointed that the Minister and the Government have not responded to the motion in the way in which it is put forward. It is not put forward to score political points. From the very beginning – I know my colleagues on the far side of the House will agree – I have approached the matter as dispassionately as possible. My only concern has been to try to be fair to all sides and establish the truth of what happened.

We, in Fine Gael, are approaching this matter in the most helpful and constructive way possible and will press our proposal to a vote tonight. We will oppose the Minister's amendment. I appeal to those on the other side of the House who expressed support for what I proposed at the earlier stages to support us.

Mrs. Taylor-Quinn

I formally second Senator Manning's proposal. The motion tabled by Fine Gael is clear, fair and strives definitively to establish the facts without convolution. The scenario that has emerged in recent weeks is not welcome. In 1970 the State was convulsed when the then Leader of Fine Gael, Mr. Liam Cosgrave, went to the then Taoiseach, Mr. Jack Lynch, with specific information given to him. He did so because of a fear for the security of the State at the time. Subsequently, a serious debate took place in the Houses of the Oireachtas. The Dáil sat through the night, the end result of which was that a num ber of Fianna Fáil Ministers were sacked from office.

A number of years later a trial took place, known in recent history as the Arms Trial, from which certain conclusions emerged. Matters were laid to rest, although there have been tensions within sections of a particular party, until the documents in question were released under the 30 year rule as a result of which certain individuals have made various allegations. Senator Manning is prudent, right and fair-minded in placing this proposal before the House requesting a full inquiry and a full independent examination of the documentation available by persons with no vested interest and without any direct implication in what happened at the time. He has suggested that a judge, a senior Member of the Houses of the Oireachtas, a historian and a civil servant be involved in the process. There is no urgency in relation to the way in which it should be done. There is extensive documentation available in the Department of Justice, Equality and Law Reform, the Attorney General's office and various archives. It would be a very time consuming job, but in the interest of fair play and keeping the public fully informed, it is important that the exercise proceed.

At the time of the crisis, various individuals and politicians at the most senior level were involved as well as members of the Garda and the Army. It was a very serious matter and the House was under very tight security. It was not unusual for major marches to arrive outside the gates of Leinster House. Thousands of Provisional IRA supporters were, repeatedly, at the gates. It was a real crisis.

There must be a full inquiry. It is not adequate for the Minister to undertake an investigation in his Department. If he would listen, it would be appreciated because he is only one cog in the wheel in relation to the entire investigation which should not just be about his Department. It should also be about the Attorney General's office. Sections of the Army and the Garda Síochána would also have to be investigated. That is the reality. All the research would have to be collated in a dispassionate and fair-minded fashion.

It is unfortunate that allegations have been made by those involved on either side at the time. It is important to ensure a wrong was not done to persons at the time, that their careers were not damaged irreparably and that they did not become broken people. If a wrong was done, we and the public should know about it. It is, equally, important that those against whom allegations are being made have those matters cleared up and the record put straight.

During the weekend we saw an interview with Captain Kelly. We also saw Deputy Desmond O'Malley being interviewed and counter-claims were made on both sides. Deputy O'Malley, as a member of the Government side, has publicly stated that he would support a full inquiry, not just an inquiry into a particular aspect. For the inquiry to be effective, it will have to be full and range across every aspect, not just one.

The amendment tabled by the Government is extraordinary. Why has it decided to present such a narrow, restrictive amendment to the motion? It is so narrow, it is appalling. It notes the allegations made concerning the preparation of the book of evidence in the Arms Trial, welcomes the inquiry which the Minister for Justice, Equality and Law Reform is undertaking into the matter and calls on him to make the results public.

Is the Minister for Justice, Equality and Law Reform making inquiries into specific elements related to the book of evidence in the Arms Trial? That would not be acceptable. How can the Minister believe that in a democratic State natural justice can be done or seen to be done or have any credibility if the Department of Justice is seen to be investigating itself? Let us be honest. The Minister and I both know, as do the rest of the Members of this House and the general public, that one cannot have a credible investigation when the outfit under investigation is investigating itself.

I ask the Minister to arrange with his party to withdraw this amendment and accept the motion as tabled because going down this route will lead to other questions and further inquiries. Ultimately, the Minister will find himself dragged into holding a very detailed inquiry. He would be better off running with it now and getting the full facts and conclusions, rather than proceeding selectively to investigating only part of the matter.

The Minister's proposal to proceed down this route raises many questions. Is it because Fianna Fáil does not want the full facts to be known? Does that party want to point the finger selectively and in certain directions only? Does it want to protect certain people by undertaking such a narrow investigation? What is Fianna Fáil trying to hide?

Deputy Desmond O'Malley of the Progressive Democrat Party has stated he wants a full inquiry. Has the Minister consulted with the Tánaiste and the Progressive Democrats on the motion? Has he discussed the details of his proposals within his Department? This is a fundamental matter of democracy relating to the highest levels of the State and how the Taoiseach's office and a number of other Government Departments operated back in 1970. I urge the Government side to take the Fine Gael motion as it stands, accept it in good faith in the interests of natural justice and fair play to all concerned and withdraw its amendment.

Mr. O'Donovan

I move amendment No. 1:

To delete all words after "Seanad Éireann" and substitute the following:

"notes the allegations which have been made concerning the preparation of the Book of Evidence in the Arms Trial, welcomes the inquiries which the Minister for Justice, Equality and Law Reform is currently undertaking into the matter; and calls on the Minister to make public the results of these inquiries as soon as possible."

I take issue with the view expressed by the speakers opposite that our amendment is perverse or cynical. That suggestion is totally over the top.

I am sure the words used in the motion by my eloquent colleague, Senator Manning, were well intended but let us take the phrase "small group". What is meant by that, two, three, four, five, six or more members?

I also query the notion of an "independent group". Who will define independent and who will be included in the group? Will it be politicians, historians, members of the Judiciary? I query the meaning of the phrase "expert group". Might I be so bold as to challenge the Fine Gael speakers to define who constitutes an expert?

Mr. Manning

District Court legalese.

Mr. O'Donovan

I remind my colleague, Senator Manning, and my other colleagues on the Opposition side that Brendan Behan once described the word expert as "a darling word", which makes me wonder whether this is a "darling motion".

Mr. Manning

This is not worthy of the Senator. It is District Court legalese and the Senator is treating the motion with contempt.

Mr. O'Donovan

I am not treating it with contempt. I am querying aspects of it.

Mr. Manning

The Senator is treating it with contempt.

An Cathaoirleach

Senator O'Donovan must be allowed to move the amendment without interruptions.

Mr. O'Donovan

My contempt would have been much mellower if our amendment had not been described as both perverse and cynical, which is very strong language.

The difficulty here is that if we choose historians or journalists, different members of the group might reach totally different conclusions. If we set up such a group, it is possible to envisage the findings presented to us being supported by a majority of members, for example, three to two in a group of five or four to three in a group of seven. How does one decide?

The motion goes on to call for the expert group "to collect all available evidence relating to the Arms Trial". The use of the word "evidence" might lead to a retrial of sorts and I ask the Opposition if a retrial by this expert group is envisaged.

To return to the notion of an independent group, the Judiciary in my view is tasked by the Constitution and its independence from the other arms of the State on matters of law is protected by the Constitution. The facts are that the defendants in the Arms Trial, including the former Taoiseach, Charles J. Haughey, Mr. Kelly and Mr. Luykx, faced trial by judge and jury and all were acquitted by the court of trying to import arms. We must be extremely careful with this issue. To my knowledge, there was no appeal and no judicial inquiry. Consequently, the Arms Trial, as a trial by law under our judicial system, is complete and consigned to history.

I assume, subject to correction, that all available evidence relating to the Arms Trial was dealt with appropriately by the court at that time. There is a clear duty on all practising lawyers to put all the facts before the court and the jury. The code of ethics of the Bar Council clearly states that this is required practice for all criminal trials.

Archive evidence now available would appear to indicate that crucial statements were either altered or possibly edited. That would be very worrying were it to transpire as fact. Any editing of any witness statement pertaining to any court, whether it be a District or Circuit Court, the High Court or the Supreme Court, would be a grave matter.

I have no doubt that the Arms Trial severely damaged the reputations of a number of eminent people, including Captain Kelly, Charles J. Haughey and Neil Blaney. The late Neil Blaney went before a district judge to be assessed in a summary fashion. What unfolded was that the judge found insufficient evidence to bring Mr. Blaney to trial and, to use a technical legal term, information was refused. This was the end of the trial as far as Mr. Blaney was concerned. There is a view abroad that Mr. Blaney, Mr. Haughey and others were merely scapegoats in a political event of the time.

After the words "Arms Trial", the motion continues, "and the events surrounding it". This again is interesting because the Senators condemn us for moving a very narrow amendment. Looking at the wording of the motion, I conclude that the task of looking at all the events surrounding the Arms Trial would take a huge amount of time. One would necessarily have to look at the civil rights movement in Northern Ireland in the mid to late 1960s. One would then have to look at the situation the Nationalist community faced prior to the Arms Trial when its members had to take to the streets and fight for their civil rights and against the discrimination imposed on them. One would then inevitably have to look at the rebirth or, more appropriately, the reformation or resurrection of the IRA. I have no doubt that the oppression of the Nationalists in the North in the mid 1960s caused many young men and women to look towards the IRA for protection.

One would also have to examine the views and stance taken by members of the Social Democratic and Labour Party at that time. People such as Gerry Fitt and Paddy Devlin as well as many other Nationalist figures came to Dublin and sought protection for the Nationalist community in the North. These are all "events surrounding" the Arms Trial.

Mr. Manning

Of course they are.

Mrs. Taylor-Quinn

And look at the reality of what happened.

Mr. O'Donovan

There was a great fear at the time in Northern Ireland that there would be a sort of ethnic cleansing against the Nationalist community. The fear was such that hundreds, indeed thousands, of nationalists were prepared to flee and seek refuge in the Republic.

One might also examine the use of the phrase by Jack Lynch during the period in question that "We will not stand idly by."

Mr. Manning

He did not say "idly", he said "We will not stand by."

Mr. O'Donovan

I accept the Senator's correction. One could also consider the developments – civil strife etc. – that took place in the North subsequent to the Arms Trial.

I wish to place on record that many people's reputations were severely damaged as a result of the Arms Trial. Captain James Kelly lost his position in the Army, suffered financially and was seen as a social outcast. I have sympathy with the view—

Mrs. Taylor-Quinn

He subsequently became a member of the Fianna Fáil national executive and, therefore, was not a complete social outcast.

Mr. O'Donovan

—that this man should be compensated. There has been a great deal of innuendo about the role played by Deputy O'Malley and others in the Progressive Democrats Party. Senator Gibbons will contribute later and I am sure he will elaborate his views on this matter. I have great sympathy with him and his family in regard to the innuendo and allegations which have arisen in respect of his late father.

It is not for me to write anyone's political epitaph this evening and I have no intention of doing so. However, I oppose the motion and support what the Minister is proposing to do. Inquiries are currently being carried out which the Minister instigated immediately after this issue became public. When those inquiries are complete and when the Minister has reported to the Oireachtas and made the findings of those inquiries public, we can then, perhaps, engage in a further consideration of this matter. I do not believe we should establish a small independent group to consider this complex matter. Engaging in consideration of all the events which took place during the period in question would be a task of astronomical proportions. I request that the amendment be seen for what it is and that the Minister be allowed to do his job.

Mr. Manning

The amendment is certainly seen for what it is.

Mrs. Taylor-Quinn

Protect the Haugheyite section of Fianna Fáil.

Minister for Justice, Equality and Law Reform (Mr. O'Donoghue)

I am grateful for the opportunity to respond to this motion and to share with the House some preliminary thoughts on the issues raised by the recent "Prime Time" broadcasts on RTÉ relating to the Arms Trial. At the outset I might note that these issues arise from an analysis of documents released by my Department, with others, at the end of last year under the Archives Act.

No matter what the outcome of the current controversy, I believe the decision to release the documents was correct. The Archives Act effectively allows for a certain degree of subjective discretion in decisions on the release of documents, but it is right, and in the spirit of the Act, for such decisions to be informed by a commitment to openness and transparency to the greatest possible extent. Whatever the short-term difficulties that might be caused by the release of documents in cases of this nature, they are far outweighed by the insight which such records give us into our past.

The Arms Trial and the controversies surrounding it are an important part of that past, occurring as they did against a backdrop of civil disturbance in the North on an unparalleled scale. While we are now, thankfully, in a period of genuine hope where, more and more, peace is being embraced and violence rejected, it is nevertheless the case that the events of 30 years ago still reverberate today. Any fresh insights into the Arms Trial, therefore, are bound to be not just of historical significance, but of contemporary interest. It is not surprising that the rolling programme of release of Government papers under the 30 year rule, having reached an era of such particular significance, should have attracted considerable interest and, no doubt, will continue to do so in the coming years. This is all the more so when it is inevitable, in some cases, that the release of papers, instead of explaining events, raises new questions.

Such is the case with the analysis by "Prime Time" of papers relating to the Arms Trial. The issues raised by "Prime Time", as I understand them, derive from a particular interpretation of the released documentation and focus on differences between an original statement by Colonel Hefferon, the former director of military intelli gence, and the version of his statement which was included in the book of evidence. The allegation, as I understand it, is that Colonel Hefferon's original statement was altered prior to inclusion in the book of evidence so as to remove from it references to the alleged knowledge of the then Minister for Defence – which he always denied – of the proposed importation of arms because, it is argued, such references were seen as potentially damaging to the prosecution and helpful to the defence, at least in respect of some of the defendants.

This allegation was again discussed on "Prime Time" last night and has more generally been the subject of much comment in the media, with suggestions that the book of evidence was compiled in an unusual way and even some claims made that the statement in question must have been altered in the Department of Justice. Of course, Colonel Hefferon proceeded to give direct evidence in the Arms Trial on the subject matter removed from his statement, but it is argued that this makes no real difference and that it is no answer to an allegation of an attempt to suppress evidence that in the end it was unsuccessful. Having said that, it seems a matter of common sense that as the book of evidence was going to be available to the defence, and Colonel Hefferon could have been made aware of its contents, the fact that his original statement differed from that in the book of evidence was liable at any time to come into the public domain, and presumably those preparing the book of evidence would have been conscious of this.

I accept, however, that the allegations which have been made – I stress that we are talking about allegations which arise from a particular interpretation of certain documentation – are serious and cannot be ignored. As the House may be aware, I undertook, when this matter was raised in Dáil Éireann shortly after the first "Prime Time" programme, to make inquiries into the matter and report back to the Dáil as soon as possible. I am currently in the course of making those inquiries. I am having the papers in my Department double-checked, and I have been in contact with the Garda Síochána and the Attorney General to see whether they may have information on what happened. I hope to be in a position to report within the next two to three weeks or so.

The House will, I am sure, appreciate that there are particular difficulties in inquiring into a matter of this kind. The issues surrounding the Arms Trial were and remain fiercely contested by those involved. We are talking of events of 30 years ago and in circumstances where some of the main participants are no longer with us, where documentation may be incomplete and where issues of legal privilege and client confidentiality may arise. I say this not as an excuse not to inquire into the matter or as an alibi for any fail ure to find answers, but simply to be realistic with the House on the prospect of conclusively determining to the satisfaction of all concerned what happened and why it happened.

I assure the House that I will do whatever I can to find answers to the questions which were raised in the original "Prime Time" programme and that I have an open mind on whether any further inquiries might be needed. It would be wise, however, for judgment to be reserved until we obtain a clearer understanding of what happened. I appreciate it is thought by some that the documentation which has been released reveals an occurrence which is inherently incapable of innocent explanation and that the only questions needing answers relate to the identity and motivation of those who, on this understanding, sought to perpetrate a miscarriage of justice. However, I would counsel extreme caution. I do not believe that our proper understanding of what happened 30 years ago will be helped by a rush to premature conclusions. What is needed is calm analysis and cool judgment. We should remember, in particular, that the good name and reputation of individuals is at stake and that some of these individuals are no longer here to defend themselves.

The motion before the House calls for the setting up of a small independent expert group to collect all available evidence relating to the Arms Trial and the events surrounding it, to examine and evaluate such evidence, to put all such evidence into the public domain and to publish its conclusions on the issues involved. I understand the desire on the part of Senators to inquire into the allegations which have been made, but I believe that the motion is, at this stage, premature. In saying that, I am not seeking to avoid the making of inquiries which may need to be made. Indeed, I have accepted that the allegations need to be examined and I have undertaken to make what inquiries I can and to report on the results of those inquiries. I suggest to the House, therefore, that it would be reasonable to await the results of my inquiries before coming to any definitive conclusion as to the need for a more formal investigation.

I cannot guarantee that my inquiries will find answers to all the questions raised and it may be that the Senators proposing this motion will remain minded to call for the establishment of an expert group to examine the matter. I do not ask Senators, therefore, to accept in advance that my inquiries will result in a complete answer to their questions. As I am already undertaking inquiries into the matter, it would make sense to await my report which I expect to complete within the next two to three weeks. The more information we have available to us, the better placed we will be to come to a determination as to whether further action may be necessary and what form it might take. It is best for me to complete this initial inquiry to see whether any clarifying or explanatory information may be available and to enable all of us to come as far as possible to an informed conclusion on the matter.

There is also the point that even if it there were to be a consensus on the need for a further inquiry into the matter, there would remain the question of the nature and scope of that inquiry. The motion calls for such an inquiry to be carried out by a small independent expert group. I express no opinion on that at this stage, but there may be those who, if there were to be an inquiry, would question the subjectivity of such concepts as independent and expert and there may be those who would, particularly if their good name and reputation were at stake, argue that any inquiry should provide them with an opportunity to be represented and to test any evidence obtained. The protection of the reputation of people who have, sadly, died and are therefore unable to defend themselves could also be an issue.

There might also be differences of opinion on the scope of any such inquiry. The House will be aware that already there are conflicting views on this even among those affected who agree on the principle of an inquiry, with one argument being made that any inquiry should be limited to the narrow although extremely important point of the apparent alteration of a witness statement, and another argument being made that individual aspects of the Arms Trial can only be understood in context and that therefore any inquiry should be comprehensive. I make no comment at this stage on the merits of these different positions or on the interests underlying them, but it is necessary to recognise that this would be an issue to be addressed in the event of an inquiry being held.

It would be misleading, however, if I did not say that the questions of whether there should be a further inquiry and what form it should take are not straightforward. One issue is the extent to which an expert group or some other form of inquiry would have access to records which were deemed not to be releasable in accordance with the criteria set out in the Archives Act. Is it the case that different public policy considerations should apply to matters such as the Arms Trial? There is also the related point that if papers contain defamatory references to people, making them available to a group of experts does not mean that a possible action for defamation does not arise. I understand from reports in the media that one of the defendants in the Arms Trial has indicated that he is considering suing the State in relation to some documents already released to the National Archives and we must be mindful of this issue in dealing with this matter.

We must also be conscious of the danger that the Oireachtas or the Government might be seen as in some way trying to sponsor some agreed version of the State's history. It can be argued that the papers which are releasable under the National Archives policy set out by the Oireachtas in legislation are freely available in the National Archives and it is a matter for historians, journalists and everyone else who has an interest in the matter to form their own judgment. I make these points not to obstruct in any way the taking forward of this matter – I have an open mind about that – but to point out to the House that the matter is not without some difficulty. Given the length of time which has elapsed and the fact that a number of people involved can no longer present their version of events, it may prove ultimately to be the case that history alone will be in a position to judge these matters.

The motion before the House would not only seek to decide now the question of holding an inquiry in advance of hearing the results of the inquiries which I have under way, but would seek to decide the form of that inquiry and its scope. I urge Senators to accept that it would be premature to decide all these issues today. Staying their hand would not in any way prejudice their view if it remains their view upon considering my report that some form of expert group should be set up to inquire into this matter. I have an open mind on the matter, but today is not the day to determine these issues. I ask Senators to join me in recognising this and to accept the amendment to the motion.

Dr. Henry

I do not think I have ever been as confused in this House. I do not know what is going on. When Senator Manning first proposed this motion a week or two ago, I thought there was all-party agreement that it was a good idea and this was how we would proceed. I thought the Progressive Democrats were keen about it and that Deputy O'Malley had said this was the road he would favour. I respect the Minister for his speech and he has tried to put sense on it. I could not understand the logic of Senator O'Donovan's argument and I usually find him a model of clarity. What was small and independent? He dragged Brendan Behan in as an expert witness. It was extraordinary. I do not know what is going on.

As politicians, we constantly blame the media for our woes, yet we are about to jump up and down to the questions raised by "Prime Time". "Prime Time" will ask one question and we must respond with the answer. Then it will ask another question and the following week the Department of Justice, Equality and Law Reform will have to provide another answer. I cannot understand what is going on. Other members of the media will do the same. I was astonished and sympathetic the other night when a jury person gave his views on "Prime Time" about what happened 30 years ago. He was annoyed at the suggestion by Garret FitzGerald that the jury had been intimidated. This is becoming like the O. J. Simpson trial. Surely we need to get more sense? We have no one but ourselves to blame when we say the media control events if we continue in this way. I am astonished at what is happening.

It would be better if we tried to keep this at one remove from politicians. With respect to the Minister, who is an honourable man, this will be described as a political investigation of events within his Department. Serious questions are being asked and they impinge on the reputations of many people, some of whom are still alive, such as gardaí, Army officers, politicians and businessmen. If they are not alive, their children, spouses or others connected with them are still alive. I must declare an interest in that one of my uncles was the bank manager in Baggot Street where the money was deposited and from where it was withdrawn and sent to goodness knows where. He did not speak about it and he was not brought before the Arms Trial, but I look with some concern at the Dáil committee papers which must come out.

We are setting ourselves a trap by going down this road tonight. I am astonished the Progressive Democrats are agreeing to it. I urge it to exercise caution in this area because one small bit will be investigated and then there will be another question and we must jump again. That is what we are doing. This is an extraordinary state of affairs. This motion was tabled in good faith. I cannot see any political advantage for Fine Gael. It seems the usual type of academic question which Senator Manning, as an academic, is inclined to frame. If he was told the committee could not sit for six weeks or two months, that would be all right. However, let us not jump over hoops at the beck and call of the media because that is the way we are going now.

Mr. Gibbons

I welcome the opportunity this debate provides to address some of the points raised over the past three weeks following the "Prime Time" programme screened on 10 April. I speak tonight in defence of my late father, Jim Gibbons, whose name and reputation have been severely maligned in recent television programmes concerning his role in the arms crisis and the Arms Trial of the early 1970s and who is now dead and is not in a position to defend himself.

Jim Gibbons was first elected to Dáil Éireann in 1957 and he represented the people of Carlow-Kilkenny for 28 years. He served as Parliamentary Secretary from 1965 to 1969 before being appointed Minister for Defence. He also served as Minister for Agriculture and Fisheries from 1970 to 1973 and again from 1977 to 1979. During the period 1973 to 1976 he served as a member of the European Parliament. He was a member of Kilkenny County Council from 1954 to 1965. Throughout his career in public life my father served the people of Carlow-Kilkenny and the people of this country to the best of his ability and with the highest standards of honesty and integrity. He applied his strict personal morality to all facets of his public life. I am happy and proud to stand over his record of public service.

While not wishing to get into the detail of that fraught period in our recent history, I would like to highlight the impact the "Prime Time" programme and the subsequent media coverage had on my mother and the other members of my family over recent weeks. By highlighting and devoting itself entirely to one side of a very complex and critical period in Irish history, the result was effectively the character assassination of Jim Gibbons.

I take particular issue with one element of last night's "Prime Time" programme and that is the response of an alleged former juror at the Arms Trial.

Mr. Manning

Hear, hear.

Mr. Gibbons

Notwithstanding the highly inappropriate practice of interviewing a juror, my family and I were utterly appalled that RTÉ television would use written quotations from an anonymous person to level a scurrilous charge of perjury against my father. One would expect a certain standard of programming from the national broadcaster. What was delivered on last night's programme goes beyond every standard we might have anticipated. The fact that this anonymous person was given virtually carte blanche to blacken my father's name, without any contact or right of reply, merely reinforces my belief that the programme is portraying a one-sided perspective on this very serious issue.

The focus of this sometimes frenzied debate to date has centred on the statement of one witness and the alteration to this statement. I can only assume that there was more than one statement in the book of evidence and that the contents of all other statements may present a different view from those expressed by Colonel Hefferon. They should be afforded the same attention. It is worthy of mention that archival material from military intelligence files, released under the 30-year rule, demonstrates a very different view of the events surrounding the period 1969-70. These were reported in both The Irish Times and the Irish Independent in early January this year. I suggest to anybody who is genuinely interested in the truth that these files warrant further attention. Anybody wishing to get to the truth about the events surrounding the arms crisis in 1970 should be open-minded enough to examine all the facts relating to this period. This would represent a balanced approach in contrast to focusing on just one witness statement and the view of an anonymous juror. Consequently, I would wholeheartedly welcome a full investigation into all relevant documents relating to this period of our history. I have no doubt that any such inquiry would vindicate my total belief that Jim Gibbons did not perjure himself in 1970.

In the interests of natural justice and out of respect for those people who can no longer defend their reputations, the serious issues relating to those turbulent times should be lifted out of the political arena and indeed outside the remit of television trial and speculation. Instead, the matters should be put into the hands of an independent panel of experts who can assess all documentation and objectively adjudicate and report on their findings. We owe it both to the living and the dead to establish the full truth.

Mr. Coghlan

I welcome this debate and support the motion in the name of my colleague, Senator Manning, who as a historian is a calm and dispassionate observer. I do not understand why we are dividing over this. I welcome the contribution of Senator Gibbons, a man for whom I have great time, and I heartily concur with what he said.

We can marry these two matters. As Senator Gibbons said, all the facts need to be examined and we owe that to the living and the dead. Of course natural justice requirements must prevail. They are serious issues. Senator Gibbons said that we need to take these matters outside the political arena entirely and this is in line with Senator Manning's motion. They must be objectively adjudicated on.

I also welcome much of what the Minister, Deputy O'Donoghue, said. I take him at his word in his commitment to openness and transparency; perhaps I did not like his addition of "to the greatest possible extent".

In his speech he said: "Whatever the short-term difficulties that might be caused by the release of documents in cases of this nature, they are far outweighed by the insight which such records give us into our past." However, as Senator Gibbons said, we must tread carefully and we must be respectful. That is our intention – I do not believe Senator Manning has anything else on his mind; I certainly have not. I am not here to quibble or fight with anyone on either side of the House. I agree totally with what Senator Gibbons said about getting this out of the political arena and that is what this motion calls for. I look forward to hearing Senator Manning further when he responds.

In accepting this motion, the Government would decide whom to appoint to the expert group. Senator Manning has in mind an eminent High Court judge or a former judge, a historian and a former officer of these Houses. All sides could readily agree to the composition of such a group. All we want is to get at the truth in a balanced and fair way. There is a report from the Committee of Public Accounts from the period between 1971 and 1973 that remains under wraps and despite the 30-year rule, there are other papers which would be available to an independent group if it were set up.

As the Minister said, many new questions have been raised. I agree with him that we must not rush to premature judgment, and that is consistent with this motion. I welcome the Minister's own inquiries within his Department and the release of such information which may come from that. As Senator Gibbons said, the proper thing to do with that information would be to keep it outside the political arena and place it in the hands of an independent-minded group that would give its objective adjudication.

The Minister stated that his inquiries would be completed within a very short period. If the House were to pass this motion, we would be respecting the dead, we would be very much complying with Senator Gibbons's intentions as I understood them and we could all be happy. It need not become operational until after the Minister's extra information is available because it will take some time to assemble a group and a back-up group. We can have a meeting of minds on this issue. We do not have to press an amendment.

We should respect what Senator Gibbons said. Opinion columns and editorials have put forward many differing views since the "Prime Time" programme. Readers may believe Mr. Vincent Browne, Mr. Ryle Dwyer or Mr. Frank McNally, depending on which newspaper they read. These commentators have their biases. Without showing disrespect to those writers, we do not necessarily want to believe any of them. We just want to get at the facts and the truth, and that can only be had by making all relevant information available to a group which can undertake a proper, objective analysis of the matter.

We should be big enough to accept the truth but it is important to set about finding that truth, whatever it may be. If we are to give this matter credibility we must accept this motion, although I accept that the Government will have a big hand in setting up an inquiry. The Minister mentioned transparency, openness and the desire to find the truth. I take him at his word. Nobody wants to play games with this matter, it is far too important. I was struck by the contribution of Senator Gibbons, and taking that contribution with those of Senator Manning and the Minister, I believe it is possible to find a formula incorporating the motion. I commend the motion to the House.

Mr. J. Cregan

I second the amendment as outlined by Senator O'Donovan. Shortly before the Easter recess the Minister for Justice, Equality and Law Reform indicated to the House that he would be making inquiries into the claims raised on the recent "Prime Time" broadcast relating to the Arms Trial and that he would report back to the House as soon as possible – I understand the Minister hopes to be in a position to report back in two to three weeks. Regarding the establishment of a more formal inquiry, I know that various suggestions have been made but we should keep an open mind and reserve judgment until we hear back from the Minister. As Senator Coghlan said, there should be a meeting of minds. The Minister has put an inquiry in place and wishes people to reserve judgment until the results of this are made available to the House. If necessary, a further investigation by an expert group or a judicial inquiry could take place following the report. There is little sense in having another inquiry running parallel while the Minister has not finished his investigation.

Many names have been mentioned in relation to the Arms Trial, both in the House today and in the course of the trial. Each of these people served the country well in their various ways, and served with dignity. We should accept the unique events of the time and the unique situation that different people found themselves in and had to react to. Many against whom allegations have been made are no longer alive. The period of the trial was a difficult time for the members involved and their families, and we should be sensitive to that. It is in everybody's interest that we establish the truth. When the Minister brings the results of his current inquiry to the House he will then consider what action is necessary. It is sensible to abide by his wishes.

Reference has been made to one document and one piece of evidence, but it is wrong to draw assumptions from that without having access to all evidence and all documents. Many members are in agreement on this. Descriptions such as "cynical" and "perverse" have been used to describe the amendment before the House. I do not agree with that. Such an interpretation was never our intention. We could take issue with the wording from the other side of the House. When Senator O'Donovan mentioned an expert group, Senator Coghlan said that different historians may hold different views. A huge range of opinions is not what we want. We want to get to the truth.

Reference has also been made to the independence, the competence, the honesty and the integrity of the Minister for Justice, Equality and Law Reform and his officials.

Mr. Manning

No, their integrity was never questioned.

Mr. J. Cregan

With respect, comment was made that the Department of Justice was up to its neck in these events in 1970 or 1969.

Mr. Manning

That is true.

Mr. J. Cregan

I draw the inference that if we have such an opinion of the Department being involved in that fashion at that time, it will be difficult to agree now as to its independence in this matter, and that is regrettable. Not alone are we casting aspersions on the Minister who sits in that important office today and his officials, but also on many who have served in that Depart ment in the past. There have been Ministers from all sides of the House who have served in the Department of Justice with their officials. I have the fullest confidence in the Department and in the current Minister, Deputy O'Donoghue. He will go down in history for the amount of legislation he has introduced over the past four years for the betterment of every citizen. We must weigh up whether we should wait for the Minister and his officials to report or take another course. I believe the Minister will act honestly to bring us the results we require. I do not believe we will be finished with this matter when the Minster brings in the results. We may have to go much further. The dispute here is about what way we go about this and I believe the amendment is the correct way.

The Fine Gael leader, Deputy Noonan, suggested on RTÉ's "Morning Ireland" this morning that, "following the receipt of a report on the release of these papers from the Clerk of the Dáil, the Committee on Procedure and Privileges could inquire into the broader issue of the arms crisis." As far as I am aware, the only issue the Committee on Procedure and Privileges will decide or inquire into, on receipt of the Clerk's report, will be whether the papers are to be made public. I expect this to be ready in two to three weeks' time.

Matters of evidence, law and justice must be examined by the Judiciary. When we speak of the independence of an inquiry, the Judiciary is the only group which can claim to have this quality of independence, as recognised in the Constitution. I consider the amendment put down by Senator Cassidy as a reasonable response. Serious allegations have been made concerning the preparation of the book of evidence in the Arms Trial and I welcome the inquiry which the Minister for Justice, Equality and Law Reform, Deputy O'Donoghue, is currently undertaking. I urge the Minister to consider carefully all aspects of such allegations and, when ready, to publish the results of such inquiries immediately. I have confidence in the Minister.

I do not see how the Government can set up an expert group as outlined in the Fine Gael motion and I have outlined my difficulties with the phrasing of that motion. I respectfully suggest that my colleagues revisit this entire saga once the Minister has concluded his inquiry and it is made public. A full judicial inquiry may be warranted and I have no difficulty with that. I would welcome it, as would Members from all sides of the House. I commend the amendment and ask Members to support it.

Mr. Norris

Senator John Cregan's contribution suggested some movement towards a common position. I hope this may be the case. He seemed to indicate that once the Minister receives the information being sought, it may well be proper to appoint the type of committee of inquiry sug gested by Senator Manning. I do not see any conflict between these two positions. Senator Manning has made a very convincing case for an inquiry which would include professional historians.

This was a very turbulent period in Irish politics. I am not surprised that people are confused about it now because it was extremely confusing at the time. The State was very parlous and emotions ran high. People came down from Northern Ireland claiming they were under great threat and it appeared from newsreels that this was the case. People were being attacked and appeals were made for support. Some sections of the Government of the day did not seem to respond in a very responsible fashion to such requests and certain questions must be answered.

It is important to ascertain whether the statement was changed. It seems clear that it was. We must elicit on whose authority it was changed and whether the change affected the outcome of the case. Mr. Patrick McEntee, senior counsel, a distinguished legal authority, seems to feel it did. Was the evidence admissible in any case? Deputy O'Malley dismissed it as hearsay and was not concerned about it because it would not have been admissible. I am not a legal authority and do not know the answers to these questions. Historians and legal experts could make a determination on the facts on our behalf.

Vincent Browne posed a further series of questions in this morning's newspaper which also require answers, particularly in light of the fact that Deputy O'Malley has a very strong reputation as an honourable, decent and conscientious man. It appears that he did attend a secret meeting with Mr. Haughey and approached the then Secretary of the Department, Mr. Peter Berry. We must seek an explanation. In some way, I understand how the confusion could have arisen. The letter reproduced photographically in The Irish Times indicates that it was a formulaic response produced en masse. The then Minister may well have signed a sheaf of these formulaic letters stating that a particular course of action was necessary and that may account for his lack of memory in the matter.

Senator O'Donovan received something of a handbagging from my colleague and while I sympathise with him to some extent, he deserved it. The quotation he desperately attempted to recall was not from Brendan Behan, but from Seán O'Casey. His mistake illustrates the deficiencies of memory over a very short period. We are talking here about something that happened 30 years ago.

I was very moved by the manner in which Senator Gibbons manfully defended his father. In 1970, I, among others, was under the impression that Mr. Gibbons, like Deputy O'Malley, was a man of very high personal standards of morality and public behaviour. This view has been challenged and it must be very difficult for the Gib bons family to hear the allegations that had Colonel Hefferon's evidence been available, Mr. Gibbons would have been in the dock.

I strongly support the proposed establishment of a panel which would include historians to make determinations on this matter and want to place on record my reasons for doing so as they are relevant to this case. I was approached by a constituent of mine who, as a historian, has concerns about the non-application by the Department of Justice, Equality and Law Reform of the standards of practice required of it under the National Archives Act in circumstances which bear some relation to this matter, although they relate to the period 1923 to 1962. I have been advised that there is a huge lacuna in the Department which also relates to a period in which Mr. Berry was Department Secretary:

Quantification based on evidence of lacunae within sequence has revealed that in the largest of the Justice 8 sub-classes – S, for every file deposited with the National Archives from the period 1923 to 1962, a further 8.62 files are unaccounted for.

This is a worrying statistic and we need to know the reason these files are not available. Does it arise from a lack of expertise or manpower?

My correspondent obtained some information from the Department confirming that it has a large accumulation of unsorted material in its cellar in St. Stephen's Green. She states:

It would appear that no systematic attempt has been made to set this material in order since the enactment of the National Archives Act in 1986. Under the terms of the Act, deposits must be accompanied by a schedule of contents from the depositee. One might conclude, therefore, that for whatever reason, a start has yet to be made on sorting and preparing schedules relating to the contents of this cellar.

Is it possible that the Department is unaware of its obligations under the National Archives Act, the very Act which has led to the current debate? If so, my correspondent feels that it would be timely and entirely appropriate to make it aware of its obligations and ensure they are carried out without further delay. She further states that the work undertaken by the Department's six certification officers clearly needs to be reviewed.

From 1932 to 1948, my correspondent was researching a book on the history of the Communist Party of Ireland, hence her interest in the material. She states:

There was systematic leakage of either S file material dealing with Communists and other left-wing activists to the Catholic gutter press or leakage of duplicate reports to those in the Department's S sequence held in files designated as CS files from 1923 to 1939 and, thereafter, as 3C files held in Garda headquarters.

A further matter of extreme concern is the use to which these files may have been put by the Department Secretary. Few of those deposited have been deposited in their original covers and in no case where a file was inserted into a new cover prior to deposit has the original cover been deposited with the National Archives. The significance of this failure to deposit the original covers is two-fold. First, the Department disregarded the instructions of the National Archives in the matter and, second, the recto of each front cover contained a record of Registry transactions relating to the file in question. In other words, the record of usage has either been inadvertently or deliberately suppressed.

A single instance will serve to illustrate the possible implications of deliberate suppression. James Larkin Jnr was Chairman of the Communist Party of Ireland from 1933 to 1938. He was elected to the Dáil in 1943 and for many years was involved in the running of the Workers Union of Ireland, subsequently FWUI and now subsumed, together with the ITGWU, into SIPTU. It is alleged that the Department Secretary may have used material within the keeping of his Department to exert improper leverage on the WUI. Could this be proven, it would be either an authorised or unauthorised action or sequence of actions on the part of a senior civil servant, the consequences of which were, at the very least, an attempt to hamper and impede the work of the WUI in defending its members' rights and interests. If there was no such wrongdoing on the Department's part, it is in its interest to comply fully with its obligations under the National Archives Act. If such wrongdoing occurred, a full acknowledgement and apology are in order at the very least. It seems there is little in the form of legal redress open to the heirs and assignees of James Larkin Snr and Jnr but, in default of such, an acknowledgement and apology would constitute semi-formal redress and closure.

This case is directly analogous to the current one in regard to the suppression of historical files and involves a person at the centre of the controversy. This distinguished historian's analysis of missing files in the Department at a time when a key figure involved in the arms case also worked in the Department could move the focus of the question from accusations against the late Mr. Gibbons to accusations in another quarter. In any case, it is absolutely imperative that the Department is required to honour its obligations under the National Archives Act.

Mr. Dardis

What we saw last night on the "Prime Time" programme on RTÉ and what we saw previously on 10 April was neither balanced nor fair, it was sensationalist and not good journalism. I believe the whole truth is some way away from what was portrayed on "Prime Time" and that the issue of the particular interpretation of released documents must be seen in a much wider context, that is, the momentous events taking place in the Republic and Northern Ireland at that time.

Concentration on one document gives a very distorted view. I am of the view – like Senator Norris, I am not a lawyer – that the exclusion of hearsay and personal opinions would have been normal in the preparation of the book of evidence. However much I might wish to do so, I do not want to get into the details of these events and Senator Manning has also resisted that temptation. I wish to quote an article by way of illustration that, if one takes particular aspects, it is possible to put any interpretation on them. The article by Brendan Ó Cathaoir in The Irish Times of 1 and 2 January 2001 states that when Colonel Delaney took over as Director of Military Intelligence on 10 April 1970 he commented as follows:

I inquired from Col Hefferon on numerous occasions as to what Capt Kelly was doing. I got the reply that Capt Kelly was a valuable staff officer, and because of his connections in Northern Ireland he would be quite valuable in an emergency. He never informed me as to Capt Kelly's particular activities.

The article goes on to read:

Colonel Delaney decided "that I could not have as a personal staff officer, nor could I tolerate in the Intelligence Section, the presence of an officer whom I had never met, who did not report to me, or about whose activities I knew nothing."

I do not wish to go into detail other than to use this article as an illustration of what it is possible to take from selective quotations, which would rebut some of the material seen on "Prime Time". While not going into the details, I believe it is obvious to everyone that the Arms Trial case was simply the epilogue of the whole arms crisis and that two Ministers were fired in advance of that trial and another resigned.

Like Senator Manning, at the time I was not very long out of University College Dublin or very long actively involved in politics. However, I vividly recall the turmoil, anxiety and virtual hysteria of the time. The Minister referred in his speech to the context of the civil disturbance in the North, which was on an unparalleled scale. It is fair to say that was the most serious shock to the constitutional and political life of the Irish State since its foundation, notwithstanding the Emergency when there was at least a national approach. Furthermore, it was not a case of subversives trying to topple the lawfully elected Government of the State, this was being done from within the Government. I am confident there was no Cabinet decision or conspiracy to import arms, a view which I am sure will be vindi cated following the Minister's inquiries or any subsequent inquiries that might take place.

The day Senator Manning proposed on the Order of Business the establishment of an expert group of historians, I accepted that the idea had some merit. I accept also that he has been dispassionate in what he subsequently said. However, it is reasonable to avail of the outcome of the Minister's inquiries, even though I have some reservations about the limited focus of the Government amendment on the single issue of the preparation of the book of evidence. The Minister, Deputy O'Donoghue, is a truthful and fair minded-man and I am prepared to accept the assurances he gave to this House. I note he said he has an open mind of what subsequent action should be taken. Equally, Senator Manning's motion is very widely drawn. I wonder about the degree to which it is extended because it talks about events surrounding the Arms Trial. I hope when the Minister's report goes to the Government and the Dáil whatever information he and any other agency involved in the inquiry brings forward will be put in the public domain.

There has been sufficient rushing to judgment on the role of those involved in the Arms Trial. I believe these people acted honourably and patriotically and I am prepared to await the outcome of the Minister's investigations before deciding whether we go on from there. A period of calm, so markedly absent from some contributions outside this House, would be of enormous benefit and is what is needed. The matter of independent people adjudicating on these issues is problematic. I wonder how in these circumstances anyone can have an independent view because everyone's view, no matter how impartial, is coloured.

I strongly support what Senator Gibbons said in relation to the use of anonymous quotations from a juror on "Prime Time" last night. He adequately covered the issue and I do not wish to say any more on the matter other than to endorse what he said. I wish to refer to libelling of the dead, which, under our law, seems to take place with impunity. This is becoming an increasing feature which I would describe as "tabloidism", where the dead's reputation is up for grabs and there is no one to speak on their behalf. Fortunately, in the case of Jim Gibbons, his son is here to speak on his behalf, which is a good thing.

I hope there will be no effort to further politicise this issue – incidentally, I am not accusing Senator Manning of doing so. I believe the central figures of that time, whether the Taoiseach of the day, Jack Lynch, or all the others, will be vindicated with time, as they have been in the past. I wonder what the former Taoiseach and leader of Fine Gael, Liam Cosgrave, would think about some of these events. As I said, it is not my wish to politicise the issue. The facts speak for themselves and the interpretation of those facts will be very difficult irrespective of how independent or open-minded people are in considering the facts. I am unshakeable in my view that Deputy O'Malley, Jim Gibbons and Jack Lynch were correct in everything they did and that they behaved properly, patriotically and honourably.

Mr. Ryan

I am in the unusual position of regarding a member of both the protagonists' families, Captain Kelly and the late Jim Gibbons, as friends of mine. In different circumstances I have heard both of them say exactly what was put on the record here by Senator Gibbons and what was said about Captain Kelly, and one absolutely contradicts the other. I have no reason to doubt the veracity or sincerity of the two people, but it is strange that two people should defend their parents with such vigour, as one would expect, and end up saying that two entirely conflicting stories are true. That is the basic argument. I have no desire or wish for nor will I pursue in any way a political agenda.

I have rarely agreed with Deputy O'Malley about anything, but I have never had any doubt about his integrity or courage. I often thought that he was unnecessarily courageous and stubborn, but they are legitimate actions. I do not believe and would not suggest that he would deliberately and knowingly mislead anybody.

It is terrifying that 30 years is so short. It is important, therefore, that matters released to the archives are handled with a degree of professional responsibility. I am beginning to reach the conclusion that no professional would take a single document from the archives and construct a case on it alone. I remember the debate on the legislation relating to the National Archives when many others and I argued with the then Taoiseach, Dr. Garret FitzGerald, that 30 years was too long. In the context of this matter, however, it does not appear particularly long. In common with other Members, I remember precisely where I was – in a flat on Lower Rathmines Road – when the newspapers were delayed because they were announcing the sacking of two members of the Government and the resignation of a third.

It is unfortunate that this matter came into the public domain as it did. Quoting an anonymous juror is not upholding the best standards of investigative journalism. I also agree with Senator Dardis that it is less than courageous investigative journalism to turn on the dead. It is not the stuff of serious journalism. A person who was an occasional acquaintance and became a good friend of mine was the late Stephen Hilliard. He was libelled after he died by Phoenix magazine. He was a fine and courageous Church of Ireland priest with a wonderful record. The magazine managed to put together a concoction of stories about him and his widow attempted to sue. The judge said that it was a disgusting story, but, unfortunately, nothing could be done because he was dead.

We end up depending on the sense of responsibility of journalism in such cases. I do not suggest that the matters in the archives should have been left there and not discussed. There is a case, however, for somebody who does such work to think it through and consider whether the fact that a person is dead means the standards that normally would be applied can be set aside because one knows that one cannot be sued. Does it mean that one does not need to have the same sense of balance and responsibility that one would have normally? This is a question about journalism and the media. I am certain that if some of the people involved in this matter were alive, there would have been a huge second thought about doing some of the story because of the possibility of legal action.

Nevertheless, I have my doubts about the Department of Justice, Equality and Law Reform as a detached body conducting even a preliminary investigation. It is a protagonist and does not have a wonderful record of accountability, openness and transparency. As I said on many occasions in the past, it is not that long ago that one opened the IPA yearbook to look at the accounts of each Government Department, but when one came to the Department of Justice, Equality and Law Reform, the photograph of the Secretary General was missing because it had been decided that he was much more vulnerable than the Chief of Staff, the head of the Garda Síochána or the Minister for Justice, Equality and Law Reform. This is not the atmosphere in which to conduct a dispassionate study of an issue such as this or in which one can be certain that judgments will not be made about issues that are peripheral to this matter, but fundamental.

Is there a national security defence which could be used to justify the withholding of evidence of a trial similar to the defence that exists in the United Kingdom? That defence was used in the arms to Iraq scandal where attempts were made to withhold information in a way that would have resulted in innocent people, who believed they had authorisation to do certain things, being punished. Is there such a practice in Ireland? If so, would one be able to believe a Department, which engaged in that practice, would now reveal that such a practice was used? I do not suggest there is such a practice, but there are overtones.

Thirty years is a short time and there must be people in the Department of Justice, Equality and Law Reform now who were significant players in this matter. If they are coming into their middle 60s now, they would have been in their middle 30s then. They would not have been junior clerks in the Department; they may have been there for 20 years at that stage. I am not imputing anything, but it is not a detached body, independent of these matters. It has an interest to defend. None of us can claim objectivity, detachment or impartiality when we have an interest to defend. This is the reason the House has learned the hard way that Members must have some type of record of their own interests to protect them from that imputation.

This is the reason I am disappointed with the Government amendment. We could have discussed the precise terms of reference of the expert group or the qualifications people should have. We could have discussed in more detail issues such as the events surrounding the Arms Trial and placed a reasonable time limit on the matter. It is not acceptable, however, to postpone an investigation without a commitment from the Minister for Justice, Equality and Law Reform that something will be done afterwards. This issue will not go away; that is the inevitable consequence of documentation, whether partial or complete, coming into the public domain. Another issue that arises is the need for the Houses to get their act together. It is ridiculous that the National Archives Act applies to everybody, but Members of the Houses. It is time we became part of the same regime.

Mr. Lydon

I empathise with the Senators who tabled the motion in an effort to get to the truth. The Minister also empathises with them, but I intend to support the amendment because he said that it would be reasonable to wait for the results of his inquiries. He also said that the Senators who tabled the motion may remain minded to call for the establishment of an expert group later and that may be the best way to proceed.

I agree with Senator Henry about how the House has responded to the "Prime Time" programme. We should not do it because we tend to hop too readily. The debate, however, is not only a response to a "Prime Time" programme, but the fact that a document, evidence that should have been available, was obviously interfered with or changed. I do not believe that was done by Deputy O'Malley. There is no need on this occasion to rake over all the points that could be made about the Arms Trial and that period. It was a traumatic time for the party of which I am a member – only those who were there could begin to understand just how traumatic it was for it.

Senator Ryan mentioned the role of the media, which is most important in this case. The way the late Jim Gibbons has been pilloried is appalling. I do not know whether Mr. Gibbons told the truth, but that is not the point. The man is dead, yet the media have libelled him. They have done it to many others of whom I can think, such as the late Seán Walsh of Dublin County Council and others who were mentioned. It is an appalling thing to do to a person. I respect Senator Gibbons for defending his father and that is what I would expect of him.

However, I am also aware of the hurt other families whom I have known over the years have suffered, such as the Blaney family, the Haughey family and the family of Captain James Kelly, a man I believe was wronged. If this inquiry proves anything, it will prove he was wronged. If it is so shown, he should be reinstated at the rank he would have reached by this stage, namely, that of a full colonel, and given a pension at that rank.

I knew intimately many of the people involved in that period. I also knew of the terrible trauma, hurt, pain and passion which were part of those times. I would hate to see it all resurrected again. I hope it is not just age but also the passing of time which has mellowed us and allowed us discuss this in a rational manner. It would not have happened 30 years ago. Perhaps we have matured a little. I hope the truth emerges.

I have only one concern which was alluded to by Senator Ryan, namely, that there may eventually be an excuse to the effect that the suppression of evidence was done in the public interest to avoid some conflagration. That is akin to what Lord Denning said about the Birmingham Six, that it was better they remain in prison than the British judicial system be questioned. I would hate for my concerns to become reality. No one is a saint in this matter.

I know a great deal about the Arms Trial period. I am in possession of information about it which I understand has never come into the public domain. It is not concerned specifically with this issue but with the matter generally. Often the truth in these matters is one of perspective. When one is on the opposite side to someone else, it is difficult to see that they did what they thought was right at the time. There were different sides in this argument and I am sure both thought they did what they thought was correct at the time. It is not always easy to judge in hindsight the motivations of the men involved, especially those who have gone to their eternal reward.

I ask the Opposition to accept the amendment, although I am not sure it will. I appeal to all who debate this issue, especially those in the media, to do so in a calm and reasoned fashion to try to see if we can get to the truth of what happened at the time. If the group the Minister suggested does not work, we should proceed to a more intensive inquiry of experts or a tribunal or whatever is necessary. If another tribunal is established, perhaps we should set strict terms of reference for it to ensure it does not continue ad infinitum. However, that is another matter.

That is all I wish to say on the matter. I do not want to open up a discussion on the facts. I am concerned we may be given a reason for the doctoring of these documents to the effect that it was in the interests of the State. Perhaps that is necessary sometimes. I do not doubt Senator Ryan when he said that it happens sometimes.

Mr. Connor

I wish to share my time with Senator O'Toole.

Acting Chairman (Mr. D. Cregan)

Is that agreed? Agreed.

Mr. Connor

I wish to make a few brief comments. I support the motion. As a member of the Oireachtas Joint Committee on Justice, Equality, Defence and Women's Rights, I was involved in the investigation into the Sheedy affair. I buttress the argument that the Department of Justice, Equality and Law Reform is not very good at investigating itself. Three inquiries were conducted into the Sheedy affair, one by the Department, one by a senior member of the Judiciary and one by the committee. It was generally agreed that the report produced by the Department was the least good. I do not wish to impugn officials of the Department and allegations to that effect are quickly made when one says what I have said. However, the Department is not the best Department and Departments are never good at being judges of themselves in any event. It is against the principle of both natural justice and finding the truth that they should be such.

Senator Manning's motion suggests that an expert group of historians, legal people and, perhaps, an officer of the Houses be established to go through these archives, arrive at the truth and make a report. There is confusion as to whether all the relevant papers appear on the file being discussed and in which this famous and important letter for which privilege was claimed was discovered. It appears that there may be other archival material and documents relevant to the period which are not in the file. I do not know about this for certain but the inference can be drawn from remarks which have been made. The Public Records Office in London has recently released papers from this period which detail the comments of the then British Ambassador to Ireland, Mr. John Peck. They are interesting and should be examined in the context of this investigation. It is interesting to see what Mr. Peck wrote to the then British Foreign Secretary, Sir Alec Douglas-Hume, about what the then Tánaiste, Mr. Childers, had to say about jurors being "got at".

I admire the courage of Senator Gibbons in defending his father. As someone who lives in the farming community, I was always an admirer of his father and thought he was an excellent Minister for Agriculture. He always behaved honestly, honourably and with the utmost probity. I also believe that applied to Deputy O'Malley in this case.

We need to have all this examined and the appropriate people to examine it and the appropriate approach to it is set down in the wording of the motion and ought not to be amended. Senator Coghlan made the reasonable point that the motion could be agreed tonight and we could examine the Department's report in three weeks' time. Going on past experience, I do not believe anyone will find it to be adequate, but I do not want to prejudge it. If the motion were agreed tonight, what it has set out to do could be put into effect.

Mr. O'Toole

I thank Senator Connor for sharing his time. I do not come to this issue with any baggage as Members will be well aware. However, it is one of those occasions when the importance of trust and confidence in the political system is brought into focus. Pursuit of the truth is important to politicians of all sides. I rarely agree with Senator Lydon on issues discussed in the House, but I agree with him when he speaks of perspective. As part of my job I meet people who have witnessed the same incident, who take completely different views and describe it completely differently. I was raised in a house where my father said and continues to say that one should never depend on direct evidence if there is not also accompanying circumstantial evidence. Therefore, apparently simple and straightforward matters do not lead to straight conclusions.

I met Captain James Kelly on one occasion. While he does not do himself any favours in the media and should avoid them, he is a victim in this and I have a sense that something needs to be corrected in that regard. However, that is only related to the business in this motion.

We need to examine this issue independently and impartially. I do not accept that the Department of Justice, Equality and Law Reform will be independent and impartial, nor can any Member. It is one of the players in this episode and is completely involved. No one can walk away from the fact that a small, independent expert group reaching some conclusions on this would be of help to everyone. It would be in the interests of all Members who have spoken, especially Senator Gibbons. It would take the issue out of the political milieu, away from the commentators and the media judgments, and deal with it in an appropriate way. I strongly support the motion.

Mr. Bonner

I wish to share my time with Senator Walsh.

I am delighted to have an opportunity to speak briefly on this motion. I regret that I was not here in time to hear the contribution of Senator Gibbons, whom I respect. He has every right to defend his family. I will not judge the situation until the full facts are known.

I was in Northern Ireland today attending a cross-Border meeting in Armagh. Unfortunately, the signs of British imperialism are still to be seen there. I was a young man at the time of the arms crisis and not very actively involved in politics. I was in Derry on the day of the civil rights march. Senators may rest assured that I ran as far as I could from the trouble. As a student, I was outside the British Embassy on the night of the fire. I can understand the emotion of the time. Living in a Border constituency I was aware of how Catholic people in Northern Ireland were being treated.

Senator Dardis said that he would like to support the Opposition motion because the question is broader than merely the book of evidence. I am convinced, however, that the investigation of the omission of certain information from the book of evidence may lead to other information and extend beyond the Department of Justice, Equality and Law Reform.

I have my own opinion of what happened at the time. Deputy Neil Blaney was a respected member of the Fianna Fáil organisation in County Donegal. Despite the split in our organisation, for many years after the Arms Trial most of us continued to have great respect for Deputy Neil Blaney and were, possibly, supportive of him until the period of the hunger strikes in 1981. It was then that he moved totally away from the Fianna Fáil organisation. Deputy Neil Blaney often said that he did not leave Fianna Fáil, but that Fianna Fáil left him. The arms crisis split our organisation in County Donegal. We have had many battles with the Blaney organisation. Many on the Blaney side of the split suffered greatly in the intervening period. I could not disagree with what Deputy Neil Blaney's brother said recently on the radio.

I would like to get to the bottom of this matter, not alone to see what happened to the book of evidence, but to discover what really happened. I find it hard to believe that members of the Army, particularly Captain Kelly, acted independently, despite the fact that Captain Kelly came from a Border county and may have had republican sympathies. He was not treated fairly. If it is proved that he was a mere cog in the wheel, I hope he receives proper justice.

I would like to see the whole matter investigated. I did not see last night's television programme or the programme which dealt with Deputy O'Malley. However, I can give an example of how things can be misconstrued in the media. I was in Celtic Park last Sunday and Roy Keane was sitting about eight seats from me. When I came home I read that he was being courted by Glasgow Celtic and had been seen sitting among leading Celtic players at the match. They may have been in the same stand, but they were not sitting near to Roy Keane.

I cannot support the motion, but some day we may have to travel the route proposed by Senator Manning in order to get the full information.

Mr. Walsh

I thank Senator Bonner for sharing his time with me.

The debate has been extremely balanced. More than 30 years after the events we can speak more circumspectly about them, but they generated much emotion at the time. It is appropriate that we now have a sense of proportion and balance in relation to them. It is equally important that we do not judge the events of 30 years ago from the perspective of today. Hindsight is useful, but it is not available to us when we are obliged to make decisions. The crisis was, probably, one of the greatest challenges to face any Government in the history of the State.

While I came from a deep republican conviction, I regard all those involved in the events of the time, some of whom I knew better than others, as people of stature who made an indelible mark on governance for a long period of time. They made selfless contributions to the development of the country. Some of them may not like to be grouped together, but history has ordained that they will. The nicest tribute to the late Taoiseach, Mr. Jack Lynch, was paid by the former Taoiseach, Mr. Liam Cosgrave, when he referred to him as, probably, the most popular leader in the country since Daniel O'Connell. I knew the late Deputy Jim Gibbons in a neighbouring constituency. As a young person becoming involved in urban council activities, I found him to be accessible and extremely helpful. His son, Senator Jim Gibbons, paid him a well deserved tribute. Anyone who knew Deputy Gibbons knows that he did splendid work for agriculture and his constituency. Deputy O'Malley distinguished himself in many ministries and is accepted as having made a tremendous contribution to political life. Despite what has arisen at some of the tribunals, the former Taoiseach, Mr. Charles Haughey, made a very beneficial contribution in many ministries and as Head of Government and history will judge him more fairly than he is being judged. Senator Bonner referred to Deputy Neil Blaney. He was a man who suffered as a consequence of the events of the time, but all who were involved were scarred to some extent. We are wrong to deify or demonise any of them.

Senator Manning may find that we can agree a compromise on the issue. It is not one on which we should divide. It is important that all the documents be examined and it is for historians rather than the Oireachtas or a public inquiry to investigate these matters. History will provide a balance in relation to these events.

Mr. Manning

This has been a useful and balanced debate. It has also been an emotional one and I thank colleagues who have contributed from all sides.

I knew Senator Gibbons's father. I enjoyed the hospitality of his house and had enormous respect and affection for him. During most of his 28 years in politics my father always gave him a first preference vote, except on the occasion when my brother ran for the Dáil and he was obliged to vote within the family. The senior members of my party have always had a great respect for the integrity and patriotism of Jim Gibbons.

In submitting the motion I remembered the late Deputy John Kelly saying that had he been in government in 1969 and 1970 he did not know what he would have done. I remember the sense of confusion and helplessness we felt at the time. I will not accept lectures from Unionists whose own corrupt and rotten system was the cause of much of what happened down here in those days. That is something I will not take and which none of us should have to take from them.

As a historian and someone who tries to be fair, I am appalled by the drip, drip, drip of people rushing to judgment on the basis of new documents without placing everything into context. We must see matters in totality. We are dealing largely with documentary evidence.

While I am not being dogmatic about the composition of such a group, the reason I proposed the establishment of this small committee – I will talk to Senator O'Donovan afterwards about the words "small" and "expert"– is that it would be eminently suited to gather all the available evidence, although it might not necessarily come to a conclusion. We all have different views on the Civil War and the 1930s and 1940s because we all bring our own baggage to bear on such matters. Now, however, we can at least agree on the bulk of the actual facts upon which we will base our judgment. As a preliminary exercise this group, which would be accepted and respected by all sides of the House, could bring all the facts together. That is what my motion is about.

Senator Cregan said that I had perhaps impugned the integrity of the Department of Justice, Equality and Law Reform. I did not and my script made that very clear. I certainly would not do so. I am saying, however, what many other Senators have said, which is that the Department of Justice was a player in the events of 30 years ago and so was the Office of the Attorney General. There is a departmental loyalty and while I am not impugning anybody, there may well be, to the outside eye, a question mark over whether a Department is best suited to be the judge in its own case. In the sceptical age in which we live, the current papers should be investigated and verified by somebody outside, as much as anything else to protect the people in the Department of Justice, Equality and Law Reform and the Office of the Attorney General from any doubts that may hang over them.

I am disappointed that the motion is not being accepted. A number of people on the Government side said, in effect, that the motion was one with which they could agree. The wording of the Minister's amendment makes it impossible for me to support it. I cannot support an amendment which simply says: "Leave it to the Department of Justice, Equality and Law Reform and the Attorney General's Office, and if they come up with something new, you can put your motion down again and we might talk about it." I am moving this motion because I believe it is the right thing to do and it represents the best way forward. We can argue over the details of it later. I am also moving it as a marker that this is an issue to which we will return. I cannot accept the Government's amendment. Most people, even on the Government side of the House, would find it difficult to accept an amendment where Departments are judges in their own cases.

I thank people on all sides of the House for their contributions. It has been a good and healthy debate, carried out in a calm and civilised way without rancour or party point scoring. We have advanced the wider debate a bit further. We will press our motion and cannot support the Government amendment.

Amendment put.

Tá

Bohan, Eddie.Bonner, Enda.Chambers, Frank.Cox, Margaret.Cregan, JohnDardis, John.Farrell, Willie.Finneran, Michael.Fitzgerald, Liam.Fitzgerald, Tom.Fitzpatrick, Dermot.Gibbons, Jim.

Glynn, Camillus.Kett, Tony.Kiely, Daniel.Leonard, Ann.Lydon, Don.Mooney, Paschal.Moylan, Pat.O'Donovan, Denis.Ó Fearghail, Seán.Ó Murchú, Labhrás.Quill, Máirín.Walsh, Jim.

Níl

Burke, Paddy.Caffrey, Ernie.Coghlan, Paul.Connor, John.Coogan, Fintan.Cregan, Denis (Dino).Doyle, Joe.Hayes, Tom.Henry, Mary.Jackman, Mary.

McDonagh, Jarlath.Manning, Maurice.Norris, David.O'Meara, Kathleen.O'Toole, Joe.Ridge, Thérèse.Ross, Shane.Ryan, Brendan.Taylor-Quinn, Madeleine.

Tellers: Tá, Senators T. Fitzgerald and Gibbons; Níl, Senators Burke and Coogan.

Amendment declared carried.

Motion, as amended, put and declared carried.

An Cathaoirleach

When is it proposed to sit again?

Mr. T. Fitzgerald

At 10.30 tomorrow morning.