Opening Statement by An Tánaiste Frances Fitzgerald

I welcome this opportunity to put on the record of the House certain matters that have been raised in this House and in the media in recent days.

My objective is to put as much information as I can into the public domain, while respecting the work of the Charleton Tribunal.

For the benefit of all Members of the House, I want again to put on record that there is a Tribunal of Inquiry, chaired by Justice Charleton, continuing to carry out its work. That is a judicial body – with wide terms of reference – agreed by this House after thorough consultation and its work should be respected.

Standing Order 59, paragraph 3 of this House states that “a matter shall not be raised in such an overt manner so that it appears to be an attempt by the Dail to encroach on the functions of the Courts or a Judicial Tribunal”.

I would again remind Members of the House to consider the Tribunal’s current work and its wide Terms of Reference before coming to conclusions. All of us must be circumspect when commenting on matters before a Tribunal and as parliamentarians we must be responsible in making public comment on matters covered by a sitting Tribunal.

The terms of reference clearly mandate the Tribunal to consider a wide range of questions, including the then Commissioner’s legal strategy. Among its 16 separate terms of reference is “To investigate contacts between members of An Garda Síochána and Media and broadcasting personnel, members of the Government, TUSLA, Health Service Executive, any other State entities, or any relevant person as the Sole Member may deem necessary to carry out his work relevant to the matters set out.”

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

Members will have to agree these are very broad terms of reference, indeed agreed after much consultation with the opposition.

I will endeavour this evening to shed as much light as possible on what I and the Department of Justice knew, and at what time.

I can only speak about my own personal experience and knowledge, and I must be careful not to say anything that would undermine or interfere with the work of the Disclosures Tribunal.

Last Monday week, I confirmed to the Taoiseach that neither I – nor the Department of Justice – had any hand, act or part in the legal strategy of the former Commissioner.

In that phone conversation, I also confirmed to the Taoiseach that I only became aware of the broad details dealt with in the Commission when they came into the public domain in May 2016.

Last Thursday, the Department of Justice informed me that an email had been located. It had been sent to me late in the afternoon of 15 May 2015. It outlined a conversation between an official in the Department of Justice and an official from the Attorney General’s office, highlighting that a disagreement had arisen between the two legal teams at the Commission.

The email indicated that counsel for An Garda Siochana had raised, during the hearings, an allegation of a serious criminal complaint against Sergeant Maurice McCabe which had previously been made. It is important to state that the email said that Sergeant McCabe had always denied this allegation. Counsel for Sergeant McCabe objected to this issue being raised and asked whether the Garda Commissioner had authorised this approach. The Garda Commissioner’s authorisation was confirmed, although it was understood separately that that might be subject to further legal advice. It should be noted that this matter has been extensively referenced on the public record in the opening days of the Disclosures Tribunal earlier this year. The email also references that the Independent Review Mechanism found that an investigation file on the case had been submitted to the DPP, who had directed no prosecution.

The concluding point in the email sent to me advised that neither the Attorney nor the Minister has a function relating to the evidence a party to a Commission of Investigation may present. I could have no role whatsoever in questioning or in any way seeking to influence the evidence another party gave to a Commission of Investigation or any legal argument made by such a person.

I might myself add that this is all the more so, in circumstances where the Department of Justice was appearing before the Commission itself and had separate legal representation.

As I said to the Taoiseach, I had no knowledge of the details that later emerged in May 2016. I learned of the details in May 2016 through media reports, like everyone else. At the time, I was asked to comment on leaked transcripts. I said at the time that it would be utterly inappropriate and unfair of me to comment on such leaks. That remains the case today.

We entrusted a Commission of Investigation to look into all these matters and that is exactly what the Commission did. The Commission was held in private session. That protection of witnesses is pivotal to the effective of operation of Commissions of Inquiry.

As Minister for Justice & Equality, I strongly encouraged Garda Management to put in place comprehensive policies and procedures for whistleblowers including bringing Transparency International on board to advise on best practice in relation to whistleblowers.

I established the Policing Authority, one of the most fundamental reforms of An Garda Siochana in the history of the State and at all times sought to support and protect whistleblowers.

Following the Report of Justice O’Higgins, I used the powers available to me under the legislation establishing the Policing Authority to ask the Authority to conduct a detailed examination of the procedures and policies around whistleblowing in An Garda Síochána and to prepare a report on the matter, including any recommendations necessary to ensure those arrangements operate to best practice.

I also used the legal powers available to me to ask the Garda Síochána Ombudsman Commission (GSOC) to investigate matters alleged to have occurred in relation to a meeting in Mullingar involving certain officers.

I established the Judge O’Neill review which arose in relation to protected disclosures I received as Minister.

My record speaks for itself and my commitment to deal with these issues in a comprehensive, committed and fair manner.

As Minister for Justice I paid tribute to the work that Sgt Maurice McCabe has done and I met with Sergeant McCabe and his wife Lorraine early in my tenure.

In welcoming the publication of the O’Higgins Commission of Investigation last year, I pointed out that Justice O’Higgins described Sergeant McCabe as a man of integrity who has performed a genuine public service at considerable personal cost. He is due the gratitude, not only of the general public, but also of An Garda Síochána and of this House.

We set up tribunals of inquiry to look at all the evidence, hear all sides, and establish what the truth is. Above all, everyone is entitled to basic, fair procedures enshrined in our Constitution.

We need to let the Tribunal of Inquiry get on with the work we tasked it with doing. It is incumbent on us all to let it carry out that work.