Private Members' Business. - Tribunal of Inquiry into Garda Activities in Donegal: Motion (Resumed).

Wednesday, 27 November 2002

Dáil Eireann Debate
Vol. 558 No. 2

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The following motion was moved by Deputy Costello on Tuesday, 26 November 2002:

An Leas-Cheann Comhairle:  I draw the attention of Members to the Chair's ruling made at the outset of the debate, namely to the effect that allegations against persons should not be made under privilege in the House as the persons concerned have no way of defending themselves. Under Standing Order 56, Members should [468]refrain from making remarks which could be construed as interfering with the work of the tribunal.

Minister of State at the Department of Justice, Equality and Law Reform (Mr. B. Lenihan): Information on Brian Joseph Lenihan  Zoom on Brian Joseph Lenihan  I wish to share my time with Deputies Sexton and Fiona O'Malley and the Minister of State at the Department of Finance, Deputy Parlon.

An Leas-Cheann Comhairle:  Is that agreed? Agreed.

Mr. B. Lenihan: Information on Brian Joseph Lenihan  Zoom on Brian Joseph Lenihan  The Private Members' motion tabled by members of the Labour Party purports to address two issues in relation to the Morris inquiry. I would like to comment on both of them. Paragraph two calls on Dáil Éireann to instruct the Government to use its power to have the terms of reference of the Morris tribunal widened. Paragraph three raises the question of costs.

Both Houses of the Oireachtas passed a resolution on 28 March 2002 providing for the establishment of a tribunal under the Tribunal of Inquiry Acts, 1921 to 1998, to inquire urgently into certain definite matters of urgent public importance relating to complaints concerning some gardaí in the Donegal division. These definite matters constitute the terms of reference of the tribunal and are set out in some detail. On 24 April this year the then Minister for Justice, Equality and Law Reform under that resolution appointed the Honourable Mr. Justice Morris as the sole member of the tribunal to inquire into the matters identified in the resolution.

There are two methods of amending the terms of reference of a sitting tribunal. These are set out in the Tribunals of Inquiry (Evidence) (Amendment) (No. 2) Act, 1998. The 1998 legislation is clear on this point. One method of amending the terms of reference set out in the 1998 Act is for the tribunal to request such an amendment. If that happens, the Minister must amend the instrument establishing the tribunal, provided an appropriate resolution is passed by both Houses of the Oireachtas. In effect, the tribunal takes the initiative under this route and if the tribunal is supported by the Houses of the Oireachtas, the Minister has a passive role and must end the instrument accordingly.

A second method of amending the terms of reference is also set out in the 1998 Act. This method can be initiated by the Minister. He may ask the Attorney General to consult with the tribunal and if the tribunal consents, the Minister may amend the relevant instrument, provided an appropriate resolution is passed by both Houses of the Oireachtas. Either the tribunal or the Minister may initiate the process, but in both cases it is clear the tribunal has the final say. The legislation on this point is clear, but the motion tabled by the Labour Party Deputies is not consistent with the legislation. Are the Members who signed the motion aware that even if it was accepted, it [469]would not have any effect? There is no provision for Dáil Éireann to instruct the Government to initiate a consultation with the tribunal.

The Deputies who signed the motion must be aware of the tribunal's recent rulings on the issue of extending its terms of reference. The tribunal stated it could not possibly adjudicate on an application to extend the terms of reference unless material had been advanced on why an extension of the terms of reference should be sought. The tribunal indicated that it would be willing to consider arguments or submissions grounded on evidence, but that a mere assertion or request for an extension of the terms of reference was not sufficient. That is the practice of the tribunal and the position it has adopted. If we apply those standards or criteria to the motion before us, I would not like to have to appear before the tribunal and to argue a case based on what has been said during this debate.

It is useful to recall the background to the existing terms of reference. This affair arose from the tragic death of Mr. Barron in 1996. We still do not know the details of his death and no person has been brought to account for it. It is important that we do not lose sight of this matter as it is the most serious aspect of the Donegal affair. I understand concerns were raised as early as 1997 with the then Minister for Justice and former Deputy, Nora Owen, about the handling of the investigation into the death of Mr. Barron. The subsequent Garda investigation led to a file being submitted to the Director of Public Prosecutions early in 1998. However, no prosecution was initiated on foot of that file. Subsequently, a number of highly disturbing events happened, including the issuing by the gardaí of a significant number of summonses against a particular owner of a licensed premises. These summonses were not proceeded with on the instructions of the Director of Public Prosecutions. There were allegations of harassment, of control of alleged arms dumps by members of the Garda Síochána and of impropriety by members of the Garda Síochána in the conduct of prosecutions. Many of these matters were outlined in the opening statement of the tribunal which is now in session.

Following the DPP's decision on the summonses and reflecting the widespread unease about the position in Donegal, the Garda Commissioner appointed an assistant commissioner to conduct an investigation in February 1999. The House was informed of the position by the then Minister. I understand the Carty investigation was comprehensive and covered a variety of matters. It has already been praised by counsel for the tribunal. It looked at the Garda investigation into Mr. Barron's death and at allegations of harassment and that certain gardaí were involved in hoax bomb making equipment finds. In July 2000 a file was submitted to the Director of Public Prosecutions for consideration and a number of persons were charged. I understand that there were at least two other Garda investigations. There were complaints to the Garda Complaints [470]Board and there were a number of civil actions. More than 30 civil actions against the State have been instituted by different parties in County Donegal.

It is not surprising that Mr. Shane Murphy, senior counsel, who was nominated by the chairman of the Bar Council, was appointed in November 2001 to carry out an independent review of all the papers to determine whether all the necessary steps had been taken with due diligence and expedition and to advise what further actions might be taken. Mr. Murphy submitted his report early in 2001. We have been told that Mr. Murphy's main conclusion was that a tribunal of inquiry should be established. He made recommendations as to what those terms of reference should be and they have been included in the terms of reference for the Morris tribunal. It is striking to note that Mr. Murphy was asked in his report to look specifically at whether all the necessary steps had been taken with due diligence and expedition. Having looked at all the papers, he seemed to think there was not a problem because he did not include any such provision in the proposed terms of reference for the tribunal. Yet the Labour Party is trying to raise the same type of issue which apparently was rejected by Mr. Murphy as unnecessary and, more recently, by the Morris tribunal.

Mr. Costello: Information on Joe Costello  Zoom on Joe Costello  Mr. Murphy did not see all the papers.

Mr. B. Lenihan: Information on Brian Joseph Lenihan  Zoom on Brian Joseph Lenihan  In all the circumstances I cannot see any substance to the argument that the terms of reference should be extended on the lines proposed by the Labour Party motion. As I pointed out some time ago, there are two routes available. It can happen at the initiative of the Minister or of the tribunal. The tribunal is now in session. The open approach put forward by the Minister in his amendment, which reflects to some degree the rulings of the tribunal, is the right one. There are no grounds for amending the terms of reference at this stage. If the tribunal runs into any difficulties or if new issues come to light, the matter can be reconsidered.

As regards costs, the natural sympathy of anyone would be to push us towards the fact that no innocent person should suffer. We have all heard stories about the huge expense and we know the huge expense involved in having legal representation. Considering what has been said, when I looked at the relevant legislation, I was surprised to find that there are already comprehensive provisions which mean that every person who is granted representation before a tribunal will get their legal costs, provided they co-operate with the tribunal. Logically, co-operation can only be assessed at the end of a process. In case there is any doubt, I will refer to the specific provisions.

The Tribunals of Inquiry (Evidence) Acts, 1921 to 2002, allow a tribunal, which is of opinion that having regard to its findings and all other relevant matters there are sufficient reasons rendering it [471]equitable to do so, to order the whole or part of the costs of representation of a person appearing before it to be paid. When determining whether costs should be paid, a tribunal may also may take into account failure to co-operate or provide assistance or knowingly giving false or misleading information. In effect, the legal costs of participants are guaranteed in advance though actual payments are not made in advance. The Minister made the point about equitable treatment and I endorse what he said. We cannot show favouritism to particular individuals or their advisers, nor can we prejudge their cases. In this regard, I am surprised the Labour Party motion refers only to one family. I acknowledge the hurt and suffering that family has endured, but we cannot justify discrimination on any grounds. As the Minister said, equity requires that all parties to a tribunal be treated equally. To cover in advance the legal costs of all parties would be to pre-empt the power of the tribunal not to award costs to those who do not co-operate.

Mr. Costello: Information on Joe Costello  Zoom on Joe Costello  Will the Minister of State give way for a question?

Mr. B. Lenihan: Information on Brian Joseph Lenihan  Zoom on Brian Joseph Lenihan  I will take a question.

Mr. Costello: Information on Joe Costello  Zoom on Joe Costello  It is unprecedented that the Department of Justice, Equality and Law Reform, which is the parent body in this case, should not be included in the terms of reference. The McBrearty family is the family mainly concerned, which means quite clearly that its members will be entitled to costs at the end. These people have already incurred enormous costs because of the various things that have happened to them. The family would not wish to discriminate against any other family that is to be awarded costs and its members are not seeking this on a selfish basis. Will the Minister of State consider the matter in that light? A particular family has incurred enormous costs prior to now.

Mr. B. Lenihan: Information on Brian Joseph Lenihan  Zoom on Brian Joseph Lenihan  The Deputy has effectively reopened the whole basis of the argument we are having. A fundamental principle at issue here is that the tribunal decides on costs and we appoint the chairman to adjudge such matters. To make a decision on costs in advance of the inquiry, no matter how meritorious the application, would, in effect, pre-empt the work of the tribunal. That is a cardinal point of which we must not lose sight in the debate.

Mr. Costello: Information on Joe Costello  Zoom on Joe Costello  As pointed out last night, there is a precedent.

Mr. B. Lenihan: Information on Brian Joseph Lenihan  Zoom on Brian Joseph Lenihan  Lawyers do not always follow precedents and, as far as this inquiry is concerned, the point I have made is a cardinal one. I would not be bound by the precedent suggested if I was the Minister deciding the issue.

[472]Mr. Costello: Information on Joe Costello  Zoom on Joe Costello  The Minister of State does not have to be bound by it.

Mr. B. Lenihan: Information on Brian Joseph Lenihan  Zoom on Brian Joseph Lenihan  It is never desirable, as a matter of general principle, to guarantee costs in advance of legal proceedings, which is effectively the direction of this motion. Decisions on costs have to be made by the person conducting the inquiry. If we commit these inquiries to a tribunal, we commit them to chairmen who have to make decisions on costs which are intrinsically bound up with the fact-finding powers of the chair. As the Minister said, equity requires that all parties to the tribunal be treated equally and to cover in advance the legal costs of all parties would pre-empt the power of the tribunals in that regard.

Mr. Costello: Information on Joe Costello  Zoom on Joe Costello  We are talking about partial costs to defray expenses.

Mr. B. Lenihan: Information on Brian Joseph Lenihan  Zoom on Brian Joseph Lenihan  Counsel for the tribunal has already made it clear that establishing the truth in the Donegal affair will be particularly difficult and the proposal of the Labour Party could unintentionally undermine one of the tribunal's most powerful weapons with which to gain the co-operation of witnesses. It is of the utmost importance that the truth be established and public confidence in the Garda, in so far as it has been affected by events in Donegal, be restored. I do not accept that the motion before us will achieve that.

Mr. Costello: Information on Joe Costello  Zoom on Joe Costello  The law is like the Ritz, it is open to all citizens.

Mr. Naughten: Information on Denis Naughten  Zoom on Denis Naughten  It is supposed to be.

Mr. Costello: Information on Joe Costello  Zoom on Joe Costello  The Minister of State is not going to do anything for us.

Ms Sexton: Information on Mae Sexton  Zoom on Mae Sexton  I have chosen to speak tonight because, as a new Deputy, it is important to state that we all have responsibilities as democrats. We have a responsibility to support measures that were introduced and agreed in the House, particularly those aimed at investigating allegations of serious wrongdoing in cases where aspersions were cast on the guardians of the peace who are responsible for upholding law and order.

The House agreed to the terms of reference of the tribunal and the Opposition is merely playing to the gallery in putting forward this motion to have them extended.

Mr. Howlin: Information on Brendan Howlin  Zoom on Brendan Howlin  Scandalous.

Ms Sexton: Information on Mae Sexton  Zoom on Mae Sexton  It is easy to do that because one will always attract publicity. When the terms of reference were established, the Opposition knew how wide they were and knew the limitations.

[473]Mr. Costello: Information on Joe Costello  Zoom on Joe Costello  Spoken like a true member of the Progressive Democrats.

Mr. Howlin: Information on Brendan Howlin  Zoom on Brendan Howlin  Of what is the Deputy afraid?

Ms Sexton: Information on Mae Sexton  Zoom on Mae Sexton  May I continue?

An Leas-Cheann Comhairle:  Deputy Sexton, without interruption.

Ms Sexton: Information on Mae Sexton  Zoom on Mae Sexton  The Opposition knows that Mr. Justice Morris has stated that he must have regard to the democratic decision taken in the House when considering applications and that it is not appropriate to seek an amendment to the terms of reference unless good grounds exist.

Mr. Costello: Information on Joe Costello  Zoom on Joe Costello  That is why we brought forward the motion. The Deputy should support it and assist the judge.

Ms Sexton: Information on Mae Sexton  Zoom on Mae Sexton  He is mindful that such a request can be made by the tribunal if it sees fit, which it does not. Should such a request be made, the Minister has made it crystal clear that he will exercise the statutory powers vested in him to seek an extension of the terms of reference. The Opposition is speaking out of both sides of its mouth. As part of the democratic process in this House that agreed the terms of reference, the Opposition should now stand up and be counted. Is the Opposition saying it does not trust the judgment of Mr. Justice Morris or the way in which he is proceeding with the tribunal?

Mr. Howlin: Information on Brendan Howlin  Zoom on Brendan Howlin  That is silly.

Ms Sexton: Information on Mae Sexton  Zoom on Mae Sexton  Is it further suggested that the Minister for Justice, Equality and Law Reform and the Attorney General cannot be trusted to carry out their moral and ethical duty to appear before the tribunal if requested to do so? Such insinuations can be drawn from the motion before us and they are unnecessarily fostering disquiet and distrust.

Mr. Costello: Information on Joe Costello  Zoom on Joe Costello  The Deputy is the only one here making insinuations.

Ms Sexton: Information on Mae Sexton  Zoom on Mae Sexton  Surely the public is depressed enough as a result of the various scandals that have emerged in recent years. The House is required to show leadership and trust in the organs it agrees to establish to investigate allegations of wrongdoing. Mr. Justice Morris, the Minister for Justice, Equality and Law Reform and the Attorney General will not be found wanting in terms of this tribunal.

Mr. Howlin: Information on Brendan Howlin  Zoom on Brendan Howlin  Let the Minister go before it.

Ms Sexton: Information on Mae Sexton  Zoom on Mae Sexton  It is easy for the Opposition to bring this motion before the House and cry crocodile tears for the McBrearty family. We all under[474]stand and sympathise with the family's concerns—

Mr. Howlin: Information on Brendan Howlin  Zoom on Brendan Howlin  Then do something about them.

Ms Sexton: Information on Mae Sexton  Zoom on Mae Sexton  —but very strong arguments have been put forward against guaranteeing payments in advance. Any concession to the McBrearty family would have to be granted to every other party involved and that poses a direct risk of adverse findings in the cases of gardaí who requested such funding.

Mr. Costello: Information on Joe Costello  Zoom on Joe Costello  They already have it.

Ms Sexton: Information on Mae Sexton  Zoom on Mae Sexton  It is like asking for a blank cheque to be written and the Opposition knows it. Opposition Members are playing to the gallery. I have no doubt that when they take the time to consider this issue, the McBrearty family will realise they have been used.

Under legislation, it is not possible, however desirable it might be—

Mr. Howlin: Information on Brendan Howlin  Zoom on Brendan Howlin  What is not possible?

Ms Sexton: Information on Mae Sexton  Zoom on Mae Sexton  I have never interrupted anybody in this House and I ask to be given the same courtesy. I have my views, I should be able express them and I should not be interrupted by the Opposition when doing so. Nobody has anything to hide and I have no doubt that everybody called to the tribunal will give their honest appraisal of what has gone on and of what they know. I ask the House to reject this motion, which has been brought before it as a cynical exercise.

Mr. Costello: Information on Joe Costello  Zoom on Joe Costello  Disgraceful. That was the most cynical contribution I have heard for a long time.

Ms F. O'Malley: Information on Fiona O'Malley  Zoom on Fiona O'Malley  Yesterday, the Minister described the way in which the terms of reference of a tribunal of inquiry can be amended and I am sure that has been well documented in previous contributions. It is clearly set out in legislation. If Mr. Justice Morris deems it fit to change the terms of reference he is at liberty to do so and the decision is ultimately his. He is the person best qualified to make a decision of this nature and we should leave it to him rather than pre-empt a motion to change the terms of reference.

Mr. Howlin: Information on Brendan Howlin  Zoom on Brendan Howlin  It is a matter for this House.

An Leas-Cheann Comhairle:  The interruptions should cease.

Ms F. O'Malley: Information on Fiona O'Malley  Zoom on Fiona O'Malley  It is a matter for this House but not exclusively so. How long has the tribunal been running? We should give it ample scope and opportunity to do its work. That does not mean at some future date there will be no opportunity for the House or the Minister to change the terms of reference if they see fit. I contend it is slightly premature.

[475]I wish to speak on seeking the inclusion of the Minister for Justice, Equality and Law Reform, the Department and the Attorney General and citing them specifically. All citizens of this country and all Departments of Government owe a duty of care, consideration and diligence to co-operate fully with any tribunal. It is not necessary to cite individuals or Departments to get their co-operation because it is the duty of every citizen in the State to co-operate fully with the tribunal. Therefore, that is not appropriate.

My colleague, Deputy Sexton, referred to the issue of costs. Essentially one is signing a blank cheque. Any person of limited means would have reservations about coming before a tribunal as it is expensive. I sympathise with the McBrearty family in this instance, but everybody must be treated equally before the tribunal. Because of that one cannot pre-empt what decisions will be made. The experience of tribunals has been that generally persons who have co-operated have had their costs granted to them, and the level of co-operation can only be judged at the end of the process as opposed to the beginning. While I have sympathy for anybody who is called before it because it is a major financial undertaking, and essentially one is signing a blank cheque, it would not be appropriate to agree costs in advance.

In regard to his amendment, the Minister rightly pointed out it was Shane Murphy who carried out an independent investigation of the terms of reference drawn up by the Bar Council which were accepted by the Dáil. It is slightly premature to seek to amend them at this stage. The House remains open to any amendment in the future. It would be second-guessing certain results if we were to amend the terms at this early stage.

The public is rightly concerned about events that took place in Donegal. In regard to various tribunals, my colleague previously mentioned that our dirty linen is being washed, and let us hope it is washed properly. While there are many good gardaí, this is not the time to ensure the Garda is taught a lesson. The Minister in his own good time and through legislation will make the necessary changes within the Garda Síochána.

Minister of State at the Department of Finance (Mr. Parlon): Information on Tom Parlon  Zoom on Tom Parlon  I welcome the establishment of the Morris tribunal. It is regrettable, however, that it should ever have come to this. The allegations of wrongdoing and impropriety which have been made against members of the Garda Síochána are of the utmost seriousness and it is in the interests of us all to ensure that public confidence in the Garda Síochána is restored as quickly as possible.

I welcome the Minister's amendment to the motion. In moving his amendment he has taken the essence of what the Labour Party wished to achieve by its motion and moulded it in a fashion that will enable what we all want to achieve – namely, the emergence of the full truth in relation to the allegations, no matter where culpability [476]may lie, including the exposure of culpability on the part of State agencies, should that be shown, and the restoration of public confidence in the Garda Síochána and the criminal justice system generally.

The tribunal has begun its work. Its opening statement outlined the extent of the task ahead. The issues raised and the allegations which emerged were, for most of us, astounding. The detail provided in the opening statement shows that the tribunal and its legal team, in a relatively short space of time, have obtained a clear understanding of the issues. Their ability to get such a clear understanding of the sequence of events provides a clear demonstration of their desire to carry out the task in a full and frank manner. The tribunal will not allow itself to be deflected from its task nor will it hesitate in seeking to have the terms of reference altered if it feels in any way constricted or inhibited in its investigations.

I believe that the citizens of this country are aware that the vast majority of gardaí do an outstanding job for all the people and are deeply grateful to its members. However, there is no doubt that the events in Donegal have caused concern, a concern shared not only by members of the public but also by members of the Garda Síochána. They see that they live and operate in a time of rapid change, when the core values of society are being questioned as never before, when many of our institutions are coming under more rigorous scrutiny than they ever have and the unquestioning attitude which existed in our society for generations towards those in authority is no longer there. They see that the Garda Síochána is not exempt from these developments, that its job has become more difficult and more demanding. They know that in many cases respect for them as gardaí is no longer accorded automatically and in other cases they are treated with great disrespect and disdain. Events such as those in Donegal do not help the Garda win and retain the respect of the people its serves. For these ordinary members of the force, engaged in a difficult job on behalf of the State, it is vital that the tribunal gets to the bottom of what really happened in Donegal.

I have no doubt the men and women of the Garda Síochána can overcome the difficulties which the force now faces. By being cognisant of the rights and the dignity of each individual they come in contact with and by treating people fairly and impartially I have no doubt they will continue to earn and maintain the trust of the community by performing their duties to the highest standards. In some senses the events in Donegal may act as a watershed. It is clear that for the highest standards of professionalism and integrity to be maintained within the force new structures and procedures are required to be put in place. Principal among these is the Garda inspectorate which the Government has committed itself to introduce and for which legislation is being prepared and should be published in the new year. It is envisaged that this inspectorate will comprise a [477]fully independent three-person body which will have its own trained investigation staff and will have extensive powers to investigate independently complaints against members of the force. The inspectorate will be appointed by the Government upon resolution passed by each House and will be required to report to the Oireachtas annually. In addition, a report reviewing the general operation and functions of the inspectorate will be required to be supplied to the Oireachtas every five years.

It will be open to members of the public to make complaints concerning the conduct of members of the Garda Síochána directly to the inspectorate and complaints may also be referred to it by the Garda Síochána. The inspectorate will have the facility to adopt a flexible approach when dealing with complaints. This will facilitate informal resolution where the matter complained of is not serious and the complainant agrees.

Serious cases will require formal investigation and the inspectorate will be conferred with the necessary powers to ensure access to relevant evidence and to question the appropriate persons. Following a finding of misconduct by the inspectorate a recommendation for disciplinary action will be passed to the commissioner, together with the reasons for the decision of the inspectorate. Where an investigation discloses a criminal offence the matter will be referred to the Director of Public Prosecutions. The inspectorate will be obliged to automatically conduct an investigation where a person has been killed as a result of Garda action or has died in Garda custody, irrespective of whether a complaint is made in relation to the incident.

The Minister's amendment provides that this can happen. It makes clear that the present terms of reference place no limitation on the tribunal in terms of the scope of its investigations. At the same time it provides a clear signal to all those who claim that the terms of reference are not extensive enough and that the way is open and the mechanism exists to extend the terms of reference.

Mr. J. Higgins: Information on Joe Higgins  Zoom on Joe Higgins  I propose to share time with Deputies Finian McGrath, Liam Twomey, Caoimhghín Ó Caoláin and Ciarán Cuffe.

I commend the placing of this motion before the Dáil in Private Members' time. If I had the gift of Private Members' time I would have put exactly this motion at this time. It is timely and it is essential that it be passed.

This motion is about extending the terms of reference of the Morris tribunal. It is not about what the Garda Síochána did or did not do. Let us not be diverted by the valedictory remarks of members of the Progressive Democrats Party in that regard. The motion seeks to have the terms of reference extended to include the response of the Garda Síochána, the Department of Justice, Equality and Law Reform, the Minister for Justice, Equality and Law Reform, the Office of the Attorney General and any other relevant State [478]agencies to the allegations that have arisen in the Donegal cases. It is incredible and unprecedented that this is not provided for in the Morris tribunal. It is quite incredible that a Government that supposedly stands for openness and accountability is not prepared to have the most senior officers of the State held to account for the actions of those for whom they are responsible. The most serious allegations have been outlined by the McBrearty family. The reason the tribunal was set up is because it is believed there is substance to those allegations. Why is the Government blustering and bluffing on the issue? It is entirely possible to ask the member of the tribunal to extend the terms of reference. The member has deferred to the will of the Dáil, which set up the tribunal. It can ask the sole member of a tribunal to change its terms and extend them without prejudice to anybody. That is clearly the situation and I ask why the Government is not prepared to do this. Is it attempting to cover up its political failures over the past ten years? Were complaints made to senior Ministers or officials about citizens being subjected to the heavy-handed action of an ongoing campaign of harassment, was nothing done in response to persistent allegations and perhaps even the existence of proof, and is this why the Government does not want the Minister for Justice, Equality and Law Reform or other senior officials to go before a tribunal to answer?

The Minister had another outing on RTE this morning, this time without my presence, when he accused me of being a Stalinist.

Mr. McDowell: Information on Michael McDowell  Zoom on Michael McDowell  A Trotskyist.

Mr. J. Higgins: Information on Joe Higgins  Zoom on Joe Higgins  I am proud to be a Trotskyist—

Mr. McDowell: Information on Michael McDowell  Zoom on Michael McDowell  I am glad the Deputy finally accepts it.

Mr. J. Higgins: Information on Joe Higgins  Zoom on Joe Higgins  —because a Trotskyist means a democratic socialist and a fighter for ordinary working people. What happened in Stalinist countries was that the bureaucracy which was responsible was never held to account—

Mr. McDowell: Information on Michael McDowell  Zoom on Michael McDowell  Am I a Stalinist?

Mr. J. Higgins: Information on Joe Higgins  Zoom on Joe Higgins  —and that is why it fell under the weight of its own contradictions. It should not be allowed to happen in this State. It is quite clear that those who were clearly victimised by agencies of the State – the prima facie evidence is very strong in that regard – should have some guarantee in regard to their costs. Deputies, who might be very hard working, get a fixed amount of money each year – I take a lot less than most – and work 12 or 14 hours a day to advance the interests of the people they represent. Barristers must have €5,000 or €10,000 a day dropped into their laps before they will even take a pencil and underline a submission—

[479]Mr. McDowell: Information on Michael McDowell  Zoom on Michael McDowell  Does the Deputy want to encourage them and give them a blank cheque?

Mr. J. Higgins: Information on Joe Higgins  Zoom on Joe Higgins  No, I do not. I want the Minister to curtail the vast waste of money on overpaid barristers.

Mr. McDowell: Information on Michael McDowell  Zoom on Michael McDowell  Why does the Deputy want me to award costs in advance to anybody?

Mr. J. Higgins: Information on Joe Higgins  Zoom on Joe Higgins  We must not compromise the ability of citizens to be able—

Mr. McDowell: Information on Michael McDowell  Zoom on Michael McDowell  Does the Deputy want me to sign a blank cheque?

Mr. J. Higgins: Information on Joe Higgins  Zoom on Joe Higgins  The law is in many cases for the very rich. One cannot go into the High Court unless one has a lot of money. People who do not have lots of money are in danger of not getting justice. Let us therefore quit the bluff and bluster. I urge the Minister to accept the terms of this motion. Let us have justice and accountability for those who are supposed to be responsible for justice in the State.

Mr. F. McGrath: Information on Finian McGrath  Zoom on Finian McGrath  I welcome this opportunity to speak on the Morris tribunal and on the motion before the House. This motion is about justice and, above all, truth and equality for all the people concerned, especially the victims. Let us not forget the victims, and let us ensure that all sides are treated fairly within the law.

Many people and families have been hurt and it is up to us as legislators to ensure fair debate, balance and truth. This motion is about terms of reference, not the practices of the Garda. Many of us have worked with the Garda over the years, particularly in disadvantaged communities, and we know they do very good work on the ground. At the same time we must have openness and transparency. That is why I strongly support the motion.

I also strongly support the McBrearty family regarding the terms of reference and their legal costs. I have talked to the family during the week and gave them a commitment to support them in their quest for truth and justice. It is also important that we send out a strong message that nobody, whatever his or her class or creed, is above the law. Sadly, today in society some people are seen to be more equal than others. Many of us have major concerns that the law has often not been implemented fairly, especially against the poorer sections of society.

The amendment dealing with the murder of Councillor Eddie Fullerton in Donegal in 1991 should also be supported by all political groupings in this House. To stay silent in these cases is to stay silent on human rights. It is up to all Deputies to ensure the scandals that have happened will not happen again. If we fail we will lose public confidence and all politicians will be seriously damaged in the public mind. This motion is an attempt to use the powers of section 1 of the Tribunals of Inquiry Act, 1998, in order [480]to widen the terms of reference. I strongly support the motion and urge all Members to support it to ensure fairness, equality and justice.

Mr. Cuffe: Information on Ciaran Cuffe  Zoom on Ciaran Cuffe  This is a common-sense motion. It is not greatly complicated. There is a precedent for making changes such as this in various other tribunals that have been set up by the House before now. To the average person the law can be a very daunting, intimidating and costly area in which to be engaged. It is incumbent on us as representatives of the people to ensure the law is accessible to all and that it is not put beyond reach of ordinary people. Above all it is important that those at the heart of this tribunal should be adequately taken care of in terms of costs. These costs can be prohibitive particularly in a tribunal such as this. The McBrearty family has been through thick and thin over the years. It is our duty to ensure the family receives adequate protection and representation.

Over the last few years there has been a sea change in the perception of the Garda Síochána. It is important that we ensure that where there are concerns they are addressed fully and adequately by all. One bad apple has the capacity to infect all of them. There is a crisis in Garda confidence and in the public's perception of the gardaí. It is important that we put those concerns to rest and that we subscribe to the words of Commissioner Staines who said in 1922 that it is not respect for the force of law but the respect of the people that must be earned by the gardaí. This tribunal is trying to do that but it will not be adequate unless those at the heart of it are sufficiently represented.

My argument is that the McBrearty family has a right to use all the resources available to find out why the gardaí and State authorities initially failed to act on the serious allegations of corruption and intimidation. For that reason the Green Party will support the motion.

Caoimhghín Ó Caoláin: Information on Caoimhghín Ó Caoláin  Zoom on Caoimhghín Ó Caoláin  The amendment to the motion in the name of Sinn Féin Deputies centres on the murder of our colleague, Sinn Féin County Councillor Eddie Fullerton, in his home in Buncrana, County Donegal on 25 May 1991. We have put down this amendment because, like Eddie Fullerton's family, to whom we extend our continuing sympathy, we do not believe that a proper investigation into his murder has been carried out by the Garda Síochána. Given the web of corruption in the Garda in Donegal over an extended period of years, and now being exposed daily at the Morris tribunal, we believe their conduct in this case must be thoroughly examined.

Eddie Fullerton was a dear friend of mine and one of the most popular public representatives in the country. We shared an electoral platform as far back as 1984 when we were both European Parliament candidates in Connacht-Ulster. He was highly respected across the political spectrum in his native County Donegal. His energy, honesty and commitment to people drew others to him [481]instinctively. The day before Eddie was murdered he was elated because it was officially confirmed that a project he had pioneered as a lone voice for years was finally about to become a reality. The Fullerton-Pollen dam stands as a lasting memorial to a man who believed his community, his county and his country deserved the best.

There are many unanswered questions about the murder of Eddie Fullerton. Most relevant to the Morris tribunal is the conduct of the Garda investigation, to the extent that there was a Garda investigation at all. Eddie's family points out that on the one hand a comprehensive forensic examination of the scene of the murder was not carried out while on the other, gardaí took away notebooks, cassettes and other material from Eddie's home and car immediately after his death in a manner indicating an investigation of the victim, rather than his killers. The distress of the bereaved Fullerton family was deepened when they discovered this, since gardaí initially denied that any material had been removed. Two official garda bags containing some of Eddie's belongings were eventually returned to the family by gardaí. To this day the family maintains that all of the material has not been returned nor has it been kept informed of the progress of the investigation, if any.

It is of grave concern that at least one garda, now under scrutiny and facing very serious allegations before the Morris tribunal, was centrally involved in the investigation of the murder of Eddie Fullerton. This is even more alarming when we place it in a wider context. There are strong indications that, like virtually all attacks claimed or carried out by loyalist paramilitaries in this jurisdiction, the murder of Eddie Fullerton could not have been carried out without collusion from British forces. The assassins entered and left the Fullerton home in the early hours of the morning with ease. They were obviously thoroughly familiar with the area and made their getaway without hitch. They certainly had detailed local knowledge. The question that the family and many in the community ask is whether they have local assistance. The Fullerton family deserves the truth. It deserves justice and I urge support for our amendment to extend the terms of reference of the Morris tribunal to address the case.

I fully support the motion in the name of the Labour Deputies. I commend Deputy Costello for championing the case. The terms of reference must be extended and a fair arrangement on costs should be made with the McBrearty family. Top Garda management, the Minister and the Department of Justice, Equality and Law Reform must be answerable to the tribunal for their response to this massive scandal. The McBrearty family and others deserve nothing less than unhindered access to truth and justice.

I appeal to Members to support the amendment which is not in conflict with the motion. As no other mechanism offers the Fullerton family a means of having its tragedy, the loss of a husband [482]and father, addressed I hope Members support it and support the Labour Party proposal.

Ms McManus: Information on Liz McManus  Zoom on Liz McManus  I will share my time with Deputies Gilmore and Lynch.

I welcome this motion and pay tribute to Deputy Costello for bringing it to the House. It is a test of the seriousness of the Government's intent with regard to this matter. It is a test also for the new Minister for Justice, Equality and Law Reform who has a reputation of fearlessness and outspokenness. I suspect the comforts of office have blunted his performing instincts because it is clear his response is disappointing.

Mr. Gilmore: Information on Eamon Gilmore  Zoom on Eamon Gilmore  He has gone native.

Ms McManus: Information on Liz McManus  Zoom on Liz McManus  Any Minister should be aware there are dangers in terms of going native. This is a serious issue and past record has shown us that unless strong and firm decisions are made now a great opportunity to find the truth will be lost. What is being asked for is an extension of the terms of reference to include the following paragraph:

The response of the Garda Síochána, the Department of Justice, Equality and Law Reform, the Minister for Justice, Equality and Law Reform, the Office of the Attorney General and any other relevant State agencies to the allegations arising from the foregoing paragraphs and, in particular, the extent to which they exercised the powers and functions available to them fully, properly and in a timely manner.

This raises the question of why should all these individuals and bodies not be included in the terms of reference.

We are dealing with a serious investigation which questions how society can trust the forces of law and order and the system of Government and how that trust can be safeguarded. The Garda Síochána, the Department of Justice, Equality and Law Reform, the Minister and the Attorney General should all be subjected to the scrutiny of the tribunal. We must remember this is a case in which one man lost his life and others, men and women, found their quality of life ruined and, it would appear, suffered terrible injustice. Such matters deserve full investigation and nobody should be considered above or beyond scrutiny. If this inquiry is not thorough, wide-ranging and conclusive, there will be no closure for those who have been affected and responsibility will not be apportioned to those who are culpable.

If we have to consider this matter in the light of past experience, there is the obvious example of the Lindsay tribunal which, it was promised, would bring closure to victims and ensure responsibility was laid at the feet of those who were possibly negligent. Because of the inconclusive nature of that report many questions are still unanswered. In that case, 79 haemophiliacs died and many were infected with hepatitis C and [483]HIV. When the Lindsay tribunal report was published, it was greeted with some dismay by haemophiliacs because many issues were not resolved. One issue in particular was the investigation of the international drug companies. When the terms of reference of the tribunal were being drawn up, the Irish Haemophilia Society raised the issue with the then Minister for Health and Children, Deputy Cowen, and he assured the society, in writing, that the investigation into the international drug companies would be carried out. Reading the terms of reference, we in opposition understood that to be the case.

When the tribunal began its work, the Irish Haemophilia Society raised the issue with Ms Justice Lindsay because it was concerned it would not be addressed. At the time, it was informed it was too early for it to be dealt with. When the IHS pursued the Minister for Health and Children, who instructed the Attorney General to write to Ms Justice Lindsay, it was informed it was too late. On the one hand it was too early, then it was too late to include this investigation in the work of the tribunal.

The IHS is still waiting for the investigation and feels that the Minister for Justice, Equality and Law Reform, the then Attorney General, is rubbishing any chance of this investigation. The Minister for Justice, Equality and Law Reform may well now say it is too early to extend the terms of reference of the Morris tribunal and yet may, at a later stage, come to the House to say the judge has determined it is too late. Let us learn from history, otherwise we will repeat those mistakes. I urge the Minster to face up to his responsibilities and ensure that this is not a missed opportunity on such a fundamental issue.

Mr. Gilmore: Information on Eamon Gilmore  Zoom on Eamon Gilmore  I join my colleagues in supporting this motion on the Morris tribunal and the McBrearty case. The motion seeks to enable the McBrearty family to participate in the tribunal by dealing with their legal costs. That is reasonable considering the degree to which that family has had to engage in litigation over recent years in relation to these matters. It also seeks to widen the terms of reference so the authorities who are ultimately responsible for the police service and its operation are accountable to the tribunal. It is regrettable the Government has not accepted the motion, that the Minister appears to have been house-trained early in his tenure and has come here to object to the extension of the terms of reference. Even at this late stage, I ask him to reconsider his objection.

The issue raises the wider question of how we deal with serious complaints against the Garda. I regret the knee-jerk reaction we get from some spokespersons from the Garda Síochána and representative organs within the force when serious allegations are raised about the performance of individual or groups of gardaí. It is sometimes represented that those who raise such concerns are against the Garda. There is an almost siege [484]mentality that emerges from time to time in relation to those complaints. It is important to make it clear that I support the Garda Síochána and I happily have a good working relationship with them in my constituency. I do not subscribe to the idea that every tittle-tattle of a complaint should go the whole distance at the Garda complaints board or that it should be used, as it sometimes is, to frustrate investigations or the pursuit of criminal activity. However, if serious complaints are made, they should be treated seriously. If they are not, the reputation of the Garda comes into question and public confidence in the force is undermined.

I want to bring a particular case from my own constituency to the Minister's attention about which I have not spoken publicly until now. In July 2001, I was contacted by a mother who told me her adult son, in his early 30s, was severely beaten by members of the Garda Síochána. She showed me photographic evidence of the injuries he suffered. I was separately contacted by another man of a similar age who told me he was severely beaten in the same incident and showed me similar photographic evidence of the injuries he suffered. I advised both men of the procedures open to them for making a complaint. One of the men made a complaint directly to the Garda Síochána and the other complained to the Garda Complaints Board.

There followed a period of correspondence between myself and the authorities inquiring what was happening with the investigation. Eventually, the man who complained to the Garda received the following reply in July 2002, a year after the incident and the complaint:

I refer to our meeting in your home in relation to the above complaint. Your complaint was thoroughly investigated, however, the members of the Garda Síochána whom it is alleged assaulted you have not or cannot be conclusively identified. Accordingly, no further action will be taken on the matter.

The other man who complained to the Garda Complaints Board was interviewed 12 months ago, in November 2001, and has heard nothing since. I will give the Minister some of the photographs with which I was supplied and I will leave it to him to conclude, as he considers the introduction of legislation on a Garda inspectorate – he knows the Labour Party preference is for the appointment of a Garda ombudsman – whether, given the nature of the complaint made in this case and the photographic evidence available, that type of response and the length of time it took is satisfactory. I will also leave it to him to consider the individuals concerned, their families, friends, acquaintances and everyone with whom they have had contact in the 17 months since the assaults took place. It does nothing to improve confidence in the Garda and the procedures provided for the investigation of complaints.

I do not wish to comment on the incidents that took place. I was not present and I do not know [485]what happened – that is a matter for the inquiry to establish. However, the investigations which have been undertaken in relation to these cases do not satisfy me and I believe they require further consideration. This also underlines the case the Labour Party has made for the appointment of an ombudsman for the Garda Síochána to whom the public can have recourse where there are serious cases of this kind and in whom they can have confidence.

Ms Lynch: Information on Kathleen Lynch  Zoom on Kathleen Lynch  Various descriptions could be given to the events in Donegal in the mid-1990s. To describe them as bizarre is almost an understatement, even disregarding the rumours and lies surrounding them as disclosed in the opening statement of the Morris tribunal. It simply defies the imagination.

My party Whip is seated nearby and I am slightly concerned that I may be thrown out of the Labour Party for what I am about to say. I hold the present Minister for Justice, Equality and Law Reform in very high esteem.

Mr. P. McGrath: Information on Paul McGrath  Zoom on Paul McGrath  That could certainly get the Deputy into trouble, but perhaps the real concern may be in relation to what she may say next.

Ms Lynch: Information on Kathleen Lynch  Zoom on Kathleen Lynch  The butt will come a little later. Although I disagree fundamentally with the Minister on many areas in which he believes passionately, in my opinion he has a high regard for people's fundamental rights. Speaking from personal experience, one may sometimes find oneself in a position of having to defend something which, in a different arena, one would regard as indefensible. This is one such situation where one has to stand outside the ring and look inside to see what is right and proper. The significance of the Morris tribunal and the issues of Garda misconduct which it is investigating cannot be understated. The main stakeholders in this issue are those making claims against gardaí and the State, for which the Garda acts. However, under the terms of reference as currently constituted, there is a prospect that there will be no direct participation in the proceedings by either the Government Minister directly responsible for the Garda or the family at the centre of the allegations.

It is reasonable to ask why a tribunal is proceeding at all if the two main protagonists are not there to present their respective cases in a proper fashion. Failure to include the Minister for Justice, Equality and Law Reform in the terms of reference of the tribunal, in light of his overall responsibility in relation to the conduct of the Garda, has the potential to ensure that the tribunal will not achieve anything. It is at risk of not being believed if it does not have the ability to reach a conclusion. Whatever conclusion it may reach, the likelihood that it will simply lead to yet another inquiry will mean that the then Minister for Justice, Equality and Law Reform, rather [486]than the current Minister, will have to be called to answer questions on the matter.

The decision not to grant legal representation to the McBrearty family should be revisited immediately. While I listened carefully to the statement by the Minister for Justice, Equality and Law Reform in that regard, it makes no sense that those who have suffered most in this case should find themselves unable to represent themselves directly and cannot afford legal representation.

It has emerged that the Minister for Justice, Equality and Law Reform was receiving regular briefings from the Garda about the behaviour of gardaí in Donegal during the relevant period. The Minister could have acted much earlier but he did not. His reasons for not acting more quickly must undoubtedly be at the heart of this inquiry. There can be no adequate investigation of what happened in Donegal if the Minister's role in the situation is not questioned. It would appear he was being briefed on an almost weekly basis about the activity of a certain number of gardaí in Donegal, but he chose to take no action. That seems incredible. It is also incredible that the person who refused to act, even though he had overall responsibility, will not be asked what happened or why he did not act.

The Morris tribunal was established because the McBrearty family took a High Court action concerning harassment by gardaí in Donegal. That action had to be abandoned because of events which were exposed during the proceedings. As a result, the High Court case was adjourned and the tribunal established. The failure of the State to provide for the McBrearty family is baffling. They are at the centre of the allegations which form the basis for the inquiry and evidence of serious injustices perpetrated against that family is now in the public domain. It is unthinkable that the tribunal should proceed without their being represented. Resources must be made available to them in advance, as was done in the case of the haemophiliac victims of the BTSB scandal.

Unfortunately, claims of Garda corruption – whether they relates to the role of the force in Abbeylara or the disgraceful scenes which were recently witnessed in relation to the “reclaim the streets” protest – are now commonplace. I ask the Minister for Justice, Equality and Law Reform to reconsider the position with regard to the McBrearty family. If he can step outside the ring and take a more independent view of the situation, I hope he may see matters in a different light.

Minister of State at the Department of Justice, Equality and Law Reform (Mr. O'Dea): Information on Willie O'Dea  Zoom on Willie O'Dea  Although I have listened carefully to the speakers on both sides of the House in this serious debate, I have yet to hear one cogent argument that could convince any reasonable person there is something lacking in the terms of reference agreed by the House on 28 March 2002 or that there are grounds for extending the terms of reference on [487]the lines proposed in the Labour Party motion. Does any Member genuinely believe that the existing terms of reference are such as to prevent the Tribunal from inquiring and making recommendations as to the response of the Garda Síochána, the Department of Justice, Equality and Law Reform, the Minister for Justice, Equality and Law Reform, the Office of Attorney General and other relevant State agencies to the allegations which are the subject of this inquiry? Clearly, the Tribunal does not share that view.

As the Minister said, there is no limitation on the power of the tribunal to investigate anybody or any matter that comes to its notice or to apportion fault in any way. The Tribunal of Inquiries Acts require that an inquiry by a tribunal should be into definite matters of urgent public importance. The reason for such a requirement is plain, namely, that there must be good grounds for establishing a tribunal. It would be an abuse of process to send a tribunal on a fishing expedition, looking for something to investigate. Each of the existing terms of reference relates to a specific allegation or a definite matter on which there are serious questions to answer. If there are specific allegations of malfeasance or gross dereliction of duty against the Department of Justice, Equality and Law Reform, the Office of the Attorney General or the Minister, let us hear what they are and what is the supporting evidence for such allegations. In this regard, it is useful to refer to the rulings—

(Interruptions).

An Ceann Comhairle: Information on Rory O'Hanlon  Zoom on Rory O'Hanlon  Deputy Costello should allow the Minister of State to speak.

Mr. O'Dea: Information on Willie O'Dea  Zoom on Willie O'Dea  I only have a short time to reply to this debate. The Deputy knows that perfectly well. I challenge the Deputy to a debate in any form, when we both have time. It is useful to refer to the rulings of the tribunal on the issue. I want the Deputy to hear what the tribunal itself had to say. In its first ruling it was stated that the tribunal—

Mr. Costello: Information on Joe Costello  Zoom on Joe Costello  If the Minister would give way I would be happy to provide an explanation.

Mr. O'Dea: Information on Willie O'Dea  Zoom on Willie O'Dea  I will not give way. I have only a few minutes to reply. I would be happy to give way to the Deputy in any other public forum and I challenge him to a debate in any other public forum.

In the first ruling it was stated that the tribunal could not possibly adjudicate on an application to extend its terms of reference because no material has been advanced for an extension of the terms of reference being sought. The tribunal went on to point out, if arguments or submissions are made, particularly those grounded on evidence, it will then consider its attitude.

In its second, more recent, ruling where the issue was again considered, the tribunal indicated [488]that it would consider submissions to extend its terms of reference. However, it went on to say that “A mere assertion or request for an extension of the terms of reference is not sufficient.” The tribunal also stated that:

For the moment I do not think it appropriate to act on Mr. Frank McBrearty's assertion because I believe it too general in its nature and scope and premature in its timing. Mr. Frank McBrearty Senior, or anyone acting on his behalf, may, at any time, renew this application in accordance with the procedures I have indicated.

The Minister made it clear last night that he remained open to extending the terms of reference if it transpires that there is a need to do so. That is crystal clear on the last paragraph of the Government amendment.

The tribunal has already demonstrated its ability and commitment to engage in the challenging tasks that have been entrusted to it by this House. If we are to get to bottom of the Donegal affair and restore confidence in the Garda Síochána quickly, and it is of paramount importance that we do, we need to support the tribunal in its work. There seems to be some misunderstanding about the nature of a tribunal. Deputy Rabbitte last night talked about the “average citizen” being pitted against the State in the context of costs. Let us be clear. The tribunal was established by this House and will report back to this House. It is independent and it alone is charged with inquiring into the grave matters set out in its terms of reference. In that regard it has the assistance of a number of counsel and investigators. The tribunal is an inquisitorial process. It is nothing like the adversarial process of a court where you have two opposing sides with a judge or jury in the middle. The persons or organisations who appear before the tribunal do so as witnesses, not as plaintive or defendant. The sole purpose of legal representation of these witnesses is to defend the interest of their clients.

On behalf of all tribunals, I vigorously reject any suggestion that lack of legal representation for a particular witness will undermine the ability of the tribunal to do its job. As the Minister explained last night, the existing law provides that the legal costs of all parties can be met after the tribunal has made its findings, provided they have co-operated with the tribunal. Equity requires that all parties to the tribunal be treated equally. To seek to guarantee the costs of one party in advance would not only run counter to this maxim of equity but it would pre-empt the findings of the tribunal and remove perhaps its greatest power in its search for the truth, the power to grant or refuse costs.

Before concluding I must respond to two issues which arose last night. Inferences were made that the then Minister for Justice, Equality and Law Reform acted improperly in some way in communicating to the Garda certain allegations that had been made to Deputy Howlin and then [489]Deputy Jim Higgins. On 26 June 2000 one of the Deputies contacted the Minister and a meeting was arranged the next day with both Deputies. A document relating to the allegations was passed to the Minister. The allegations were against senior members of the Garda. They were serious and, if true, would constitute criminal behaviour. The next day the Minister met with the Garda Commissioner and gave him the document so that the allegations could be investigated. Both Deputies were informed of this and neither Deputy objected. Indeed, they would have grounds for objection if allegations had not been immediately investigated.

The other issue I wish to touch on briefly is the allegation that the Minister for Justice, Equality and Law Reform has never given a proper explanation as to why an exhumation order was not proceeded with in the Barron case. Detailed statements have been made to the Dáil on this matter on more than one occasion. The facts are that in 1997 a particular garda officer sought an exhumation order in respect of the body of Mr. Baron through the coroner for County Donegal. A draft exhumation order was drawn up but was not proceeded with because the garda officer in question contacted the Department and asked that the request be put on hold until further notice.

Mr. Rabbitte: Information on Pat Rabbitte  Zoom on Pat Rabbitte  I thank my colleague, Deputy Costello, for advancing this motion and the members of the other Opposition parties and Independent Deputies who decided to support it. I want to start by saying that, in the heat of battle this morning, I made some reference along the lines that the Minster for Justice, Equality and Law Reform came into the House last night to make fun of the McBrearty family. I am sorry I made that remark and I withdraw it. It was not intended in that sense.

Having examined what the Minister for Justice, Equality and Law Reform did say and having examined the amendment to the motion that he has brought forward, I have to say that I believe his position is disingenuous. The amendment is worthless from the point of view of the objective of the McBrearty family.

I made the remark this morning because I was annoyed at the statement by the Minister for Justice, Equality and Law Reform that the Labour Party was playing politics with this issue. What could be more serious than the apparent unlawful killing of a citizen and the framing of another citizen on a murder charge? I cannot think of anything more serious. The fact that it was done at the hands of the gardaí makes it more serious, if that is possible.

The reason that the Labour Party advanced this motion is that the McBrearty family feel they cannot make themselves amenable to the tribunal. They cannot become involved in it because they have already been so oppressed by the State and it has cost them so much money that they are not able to proceed. More importantly, as Deputy [490]Costello outlined, critical people who ought to be made amenable to the tribunal are not expressly included in the terms of reference.

It is all very well for the Minister to say that if something falls out of the sky the terms of reference can be altered to include, for example, the former Minister for Justice, Equality and Law Reform. As it stands at the moment there is little prospect of that happening and the more one looks at the documents the more one concludes that the exclusion of the former Minister is deliberate. It is interesting, when you look at the amendment, that it starts with 28 March 2002. There is no reference to what transpired before then, to the years of inaction when the gravimen of the allegations was in the possession of the Minister. No action was taken. We are supposed to start from 28 March.

I only came in at the end of the Minister's speech last night but, when you read it you find that the entire case being made by the present Minister for Justice, Equality and Law Reform is that the tribunal is fine because it was born out of an independent review by a senior counsel appointed for that purpose who, having examined all of the papers and heard all of the evidence, came up with this recommendation and all that the Minister's predecessor did was to implement it. That does not accord with the facts. The Minister talks about Shane Murphy, a nominee of the Bar Council, not chosen by the Department to conduct and independent review. Then, as the Minister continued to argue before Deputy Howlin interrupted, the terms of reference put to the House were those which were suggested to his predecessor by an independent and, as his friends put it earlier in the debate, an eminent senior counsel not chosen by his predecessor. The Minister goes on to explain how Mr. Murphy had the advantage over nearly everyone in the House of having seen the documentation available to the various organs of the State. What the Minister did not say was that Mr. Shane Murphy had no access to the McBrearty family or any documents they had.

The Minister has a letter sent on 7 November 2002 by solicitors acting on behalf of the McBrearty family. It reminded the Minister that he and his predecessor were aware that the only documentation seen by Mr. Murphy was that which was in the State's possession. It also pointed out that no documentation in the hands of their clients had been furnished to Mr. Murphy and that their clients had no opportunity to address him on this issue. The letter further stated that the terms of reference suggested by Mr. Murphy were entirely defined by the documentation which he was allowed to see. It then stated that if Mr. Murphy had been given a comprehensive brief, there would be no doubt that the suggested terms of reference would have included an examination of the role of the State as well.

As Deputy Howlin said, it is unprecedented in circumstances such as this that the parent Department, in this case the Department of Justice, [491]Equality and Law Reform, would not be expressly cited in the terms of reference. Deputy O'Donoghue, the Minister who presided over the Department, chose to ignore all pleas from the McBrearty family down through the years. He refused to give any heed to their complaints and escaped scot free. He came into the House and devised terms of reference that contrived to exclude him.

Mr. McDowell: Information on Michael McDowell  Zoom on Michael McDowell  The terms of reference do not contrive to exclude him.

Mr. Rabbitte: Information on Pat Rabbitte  Zoom on Pat Rabbitte  The Garda Commissioner is also not included.

I met a colleague in the corridor last night who said, “Fair play to McDowell, he has come up with an amendment that looks like it will open the door.” I said that it was great news and that I would expect no less from the eminent Minister. When I read the amendment, however, I found that it does not open the door at all. The amendment includes a reference to the resolution passed by the Dáil on 28 March 2002, as we all know. It then states that the terms of reference are, “based upon the recommendations of an independent review conducted by Mr. Shane Murphy S.C.”, but we now know that Mr. Murphy was in contact with the State side of the argument only. He did not have access to the McBrearty family, he was not briefed by them and he did not seek to talk to them. I was pleased to see that the amendment stipulated that, “the terms of reference place no limitation on the Tribunal”, but a closer reading revealed that this related only to, “the scope of any findings or recommendations it may make.” It is little comfort to those involved, as it has nothing to do with the issue before the House.

The amendment declares that the tribunal, “has expressed itself open to arguments or submissions based on evidence on the desirability of seeking an amendment of the terms of reference.” A game of pass the parcel was played. Mr. Justice Morris asked how he could agree to amend the terms of reference, given that the Dáil rejected an amendment of broadly similar substance when it originally discussed the Bill which set up the tribunal. He said that he thinks it would be impertinent of him to intervene at this stage to say that the terms of reference should be altered. When the Taoiseach was asked about the matter, he said he knew that the tribunal could approach him and that he would respond to any such approach. It is clear, as a consequence of the game of pass the parcel between the tribunal and the Taoiseach, that the issue is being avoided. The game is also being played by the Minister, Deputy McDowell, who said that he may act if something transpires. Anyone who took an interest in the Abbeylara inquiry and observed how the Garda tends to muster in these circumstances, but who believes nonetheless that something will transpire, perhaps by falling from the [492]sky, to cause the terms of reference to be altered, is naive.

The amendment to the Labour Party's motion concludes by saying that the Minister will, “keep under review the need for such consultation in the light of developing circumstances.” Such a statement, with respect to the Minister who moved the amendment, is of no more value then the commitment that allowed haemophiliacs to be sucked into the Lindsay tribunal. Deputies will remember that haemophiliacs were told, at first, that it was too early to take on board the point they were making about the drugs companies, but that they should raise it at a later date. When they mentioned it later, they were told that it was too late to do so as the tribunal was about to conclude its deliberations. The same type of commitment is being made to the McBrearty family: that something may develop to cause the terms of reference to be changed, but otherwise the Government stands over the exclusion of the family.

I would not have a problem with the latter part of the Government's amendment if there was any basis for believing that the former Minister for Justice, Equality and Law Reform, Deputy O'Donoghue, is likely to be brought before the Morris tribunal to answer for his stewardship. If one looks at the tribunal's opening statement, one will notice that there is no module that entertains the prospect of Deputy O'Donoghue being brought before the tribunal. Express provision is, however, made for chasing the whistle-blower. It is quite amazing that the tribunal's opening statement says that it will, “be necessary to ascertain the identity of this person and to seek his/her assistance for the work of the Tribunal.” This means that the allegers are being asked to bring home their allegations. Why is there an obsession with who put Deputy Howlin and former Deputy Jim Higgins in possession of the disturbing information in the first instance?

It is especially remarkable given what was said by the Assistant Garda Commissioner, Mr. Carty, when the tribunal opened in Donegal. His comments represented an outrageous denigration of two Members of the Oireachtas. He said that they used – and he selected a careful formula of words –“whatever privileges were available to them” to slander his character. They did nothing of the kind.

Mr. Stagg: Information on Emmet Stagg  Zoom on Emmet Stagg  Hear, hear.

Mr. Rabbitte: Information on Pat Rabbitte  Zoom on Pat Rabbitte  When Deputy Howlin and former Deputy Jim Higgins received the information, they did not even ventilate it in this Chamber. Instead, they went to the Minister for Justice, Equality and Law Reform in privacy to put him in possession of the information. They said that they did not know what value to give the information, but the Minister thought it was sufficiently weighty to ask the Commissioner to investigate it. Mr. Carty alleged that Deputy Howlin and Senator Higgins slandered his name, [493]even though they did not bring the information into the public domain.

Mr. Howlin: Information on Brendan Howlin  Zoom on Brendan Howlin  Never.

Mr. Rabbitte: Information on Pat Rabbitte  Zoom on Pat Rabbitte  His remarks show the kind of response one can expect from the Garda Síochána when its back is against the wall. The fascination with identifying whistle-blowers is baffling.

The late Mr. Justice Hamilton was a nice man. I am sure the Minister for Justice, Equality and Law Reform remembers that the allegers had to bring home their thorny allegations when it suited the judge. If they did not do so, he ring-fenced political donations by saying they were normal and decided that he would not investigate them further. He found that Members of this House were not only entitled not to disclose the identity of citizens who put them in possession of information that may be in the public interest or of concern, but that they had a duty not to do so. Apparently, we are departing from Mr. Justice Hamilton's finding now.

It is a matter of grave concern that, in the dying days of the last Dáil, the Tribunals of Inquiry (Evidence) (Amendment) Bill, 2002, was published on a Wednesday and guillotined on the Friday. On the eve of a general election, the former Minister for Justice, Equality and Law Reform, Deputy O'Donoghue, managed to escape. The Garda Commissioner and the Donegal State Solicitor are not expressly mentioned in the terms of reference either. My party has been accused by the Minister, Deputy McDowell, of playing politics in seeking to revisit the legislation. He had an incredible backup audience in his Progressive Democrats colleagues. I have not seen so many Deputies from that party in the House for 12 or 13 years. Perhaps the former Attorney General should have been expressly mentioned in the terms of reference, as the normally independent Deputy Fiona O'Malley and others were whipped into line tonight. One would imagine that the Minister of State, Deputy Parlon, would have some floods to attend to, but, like his party colleagues, he has been brought in to defend Deputy McDowell in case he might be asked why, as Attorney General, he assented to such leaky terms of reference.

I wish to speak about the question of legal costs. The Minister for Justice, Equality and Law Reform has advanced the argument that it would be invidious for him to choose between persons who might be called before the Morris tribunal. He said that if he provided a guarantee of legal costs for the McBrearty family, he would have to do likewise for others. I remind him, however, that such a distinction was made in the case of the Lindsay tribunal. The Minister argued last night that the haemophiliacs in that case deserved special measures as they were a charity case. Does that mean that the McBrearty family should set itself up as a charity?

Mr. McDowell: Information on Michael McDowell  Zoom on Michael McDowell  The Deputy said that last night.

[494]Mr. Rabbitte: Information on Pat Rabbitte  Zoom on Pat Rabbitte  In the state of impecuniosity to which they have been reduced, access to justice has been denied them because of want of money. If money could be advanced for the haemophiliacs, I cannot see how the Minister could come in and dismiss it with a wave of his hand as something he calls a non-precedent. There is a precedent. The Minister is correct to address, as the website of The Irish Times states tonight, the question of the efficacy and suitability of tribunals of inquiry for this kind of thing. He seems to have changes in mind, and they may be good and appropriate, but we are stuck with the here and now for this tribunal. The McBreartys are not like others. Who else is in the same position as the McBreartys? They are the victims, yet the Minister compares them to the Garda. Every single garda has the protection of his trade union or of the State and they are paid by the State. They are under the protection of the Garda Representative Association.

Mr. O'Dea: Information on Willie O'Dea  Zoom on Willie O'Dea  What about the Barron family?

Mr. Rabbitte: Information on Pat Rabbitte  Zoom on Pat Rabbitte  The Barron family never made allegations.

Mr. O'Dea: Information on Willie O'Dea  Zoom on Willie O'Dea  They are victims too.

Mr. Rabbitte: Information on Pat Rabbitte  Zoom on Pat Rabbitte  The McBreartys will be put through the wringer by the Minister's colleagues at the Bar Library and he knows it because they are the ones who made the allegations and they will have to answer for them. There is no other body. The Barron family made no such claims, and the McBreartys know that. Yet they are denied the wherewithal to appear before the tribunal.

Mr. O'Dea: Information on Willie O'Dea  Zoom on Willie O'Dea  As witnesses.

Mr. Rabbitte: Information on Pat Rabbitte  Zoom on Pat Rabbitte  That is not justice. They are the victims.

Mr. McDowell: Information on Michael McDowell  Zoom on Michael McDowell  The Deputy should not pre-judge everything.

Mr. Rabbitte: Information on Pat Rabbitte  Zoom on Pat Rabbitte  I am not pre-judging.

Mr. McDowell: Information on Michael McDowell  Zoom on Michael McDowell  The Deputy is pre-judging – that is the basis of his argument.

Mr. Rabbitte: Information on Pat Rabbitte  Zoom on Pat Rabbitte  I most emphatically am not. The only thing I am pre-judging is that a man was framed for a murder he did not commit. Is that a pre-judgment? The Minister has read the Frank Shortt judgment. He knows what is going on in Donegal. The McBreartys are the victims. The Department of Justice, Equality and Law Reform did not want to know and the Minister's predecessor did not want to know.

An Ceann Comhairle: Information on Rory O'Hanlon  Zoom on Rory O'Hanlon  The Deputy has gone two minutes over time. It is 8.30 p.m. and I am obliged to put the question.

Mr. McDowell: Information on Michael McDowell  Zoom on Michael McDowell  I have not seen so few Labour Party Deputies since the last election.

[495]

A Deputy:  The Minister will see a lot more of us.

[496]Amendment put.

Ahern, Noel.
Andrews, Barry.
Ardagh, Seán.
Aylward, Liam.
Brady, Johnny.
Brady, Martin.
Brennan, Seamus.
Browne, John.
Callanan, Joe.
Callely, Ivor.
Carty, John.
Cregan, John.
Cullen, Martin.
Curran, John.
Davern, Noel.
Dempsey, Noel.
Dempsey, Tony.
Dennehy, John.
Devins, Jimmy.
Ellis, John Frank.
Fahey, Frank.
Finneran, Michael.
Fitzpatrick, Dermot.
Fleming, Seán.
Glennon, Jim.
Grealish, Noel.
Hanafin, Mary.
Haughey, Seán.
Hoctor, Máire.
Jacob, Joe.
Kelly, Peter.
Killeen, Tony.
Kirk, Seamus.
Kitt, Tom.
Lenihan, Brian.
Lenihan, Conor.
McCreevy, Charlie.
McDaid, James.
McDowell, Michael.
McEllistrim, Thomas.
McGuinness, John.
Martin, Micheál.
Moloney, John.
Moynihan, Donal.
Moynihan, Michael.
Mulcahy, Michael.
Nolan, M.J.
Ó Fearghaíl, Seán.
O'Connor, Charlie.
O'Dea, Willie.
O'Donoghue, John.
O'Donovan, Denis.
O'Flynn, Noel.
O'Keeffe, Batt.
O'Keeffe, Ned.
O'Malley, Fiona.
O'Malley, Tim.
Parlon, Tom.
Power, Peter.
Power, Seán.
Ryan, Eoin.
Sexton, Mae.
Smith, Brendan.
Smith, Michael.
Treacy, Noel.
Wallace, Mary.
Wilkinson, Ollie.
Wright, G.V.

Blaney, Niall.
Boyle, Dan.
Breen, James.
Breen, Pat.
Broughan, Thomas P.
Burton, Joan.
Connaughton, Paul.
Connolly, Paudge.
Costello, Joe.
Coveney, Simon.
Crawford, Seymour.
Cuffe, Ciarán.
Deenihan, Jimmy.
Durkan, Bernard J.
Enright, Olwyn.
Ferris, Martin.
Gilmore, Eamon.
Gogarty, Paul.
Gormley, John.
Harkin, Marian.
Hayes, Tom.
Healy, Seamus.
Higgins, Joe.
Higgins, Michael D.
Hogan, Phil.
Howlin, Brendan.
Kehoe, Paul.
Lynch, Kathleen.
McCormack, Padraic.
McGinley, Dinny.
McGrath, Finian.
McGrath, Paul.
McHugh, Paddy.
McManus, Liz.
Morgan, Arthur.
Moynihan-Cronin, Breeda.
Murphy, Gerard.
Naughten, Denis.
Ó Caoláin, Caoimhghín.
O'Shea, Brian.
O'Sullivan, Jan.
Pattison, Seamus.
Penrose, Willie.
Perry, John.
Quinn, Ruairí.
Rabbitte, Pat.
Ring, Michael.
Ryan, Seán.
Sargent, Trevor.
Sherlock, Joe.
Shortall, Róisín.
Stagg, Emmet.
Stanton, David.
Upton, Mary.

Amendment declared carried.

Question put: “That the motion, as amended, be agreed to.”

[497]

Ahern, Noel.
Andrews, Barry.
Ardagh, Seán.
Aylward, Liam.
Brady, Johnny.
Brady, Martin.
Brennan, Seamus.
Browne, John.
Callanan, Joe.
Callely, Ivor.
Carty, John.
Cassidy, Donie.
Cregan, John.
Cullen, Martin.
Curran, John.
Davern, Noel.
Dempsey, Noel.
Dempsey, Tony.
Dennehy, John.
Devins, Jimmy.
Ellis, John.
Fahey, Frank.
Finneran, Michael.
Fitzpatrick, Dermot.
Fleming, Seán.
Glennon, Jim.
Grealish, Noel.
Hanafin, Mary.
Haughey, Seán.
Hoctor, Máire.
Jacob, Joe.
Kelly, Peter.
Killeen, Tony.
Kirk, Seamus.
Kitt, Tom.
[498]Lenihan, Brian.
Lenihan, Conor.
McCreevy, Charlie.
McDaid, James.
McDowell, Michael.
McEllistrim, Thomas.
McGuinness, John.
Martin, Micheál.
Moloney, John.
Moynihan, Donal.
Moynihan, Michael.
Mulcahy, Michael.
Nolan, M.J.
Ó Fearghaíl, Seán.
O'Connor, Charlie.
O'Dea, Willie.
O'Donoghue, John.
O'Donovan, Denis.
O'Flynn, Noel.
O'Keeffe, Batt.
O'Keeffe, Ned.
O'Malley, Fiona.
O'Malley, Tim.
Parlon, Tom.
Power, Peter.
Power, Seán.
Ryan, Eoin.
Sexton, Mae.
Smith, Brendan.
Smith, Michael.
Treacy, Noel.
Wallace, Mary.
Wilkinson, Ollie.
Wright, G. V.

Allen, Bernard.
Blaney, Niall.
Boyle, Dan.
Breen, James.
Breen, Pat.
Broughan, Thomas P.
Burton, Joan.
Connaughton, Paul.
Connolly, Paudge.
Costello, Joe.
Coveney, Simon.
Crawford, Seymour.
Cuffe, Ciarán.
Deenihan, Jimmy.
Durkan, Bernard J.
Enright, Olwyn.
Ferris, Martin.
Gilmore, Eamon.
Gogarty, Paul.
Gormley, John.
Harkin, Marian.
Hayes, Tom.
Healy, Seamus.
Higgins, Joe.
Higgins, Michael D.
Hogan, Phil.
Howlin, Brendan.
Kehoe, Paul.
Lynch, Kathleen.
McGinley, Dinny.
McGrath, Finian.
McGrath, Paul.
McHugh, Paddy.
McManus, Liz.
Mitchell, Olivia.
Morgan, Arthur.
Moynihan-Cronin, Breeda.
Ó Caoláin, Caoimhghín.
O'Shea, Brian.
O'Sullivan, Jan.
Pattison, Seamus.
Penrose, Willie.
Quinn, Ruairí.
Rabbitte, Pat.
Ring, Michael.
Ryan, Seán.
Sargent, Trevor.
Sherlock, Joe.
Shortall, Roisín.
Stagg, Emmet.
Stanton, David.
Upton, Mary.

Question declared carried.


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