Check Against Delivery


Private Members’ Business (SF Motion)


Speech by Minister for Justice and Equality, Charlie Flanagan TD


29 November 2017


Ceann Comhairle,


I recognise the disquiet and concern expressed in this House and in the Upper House over the last number of days about matters pertaining to material discovered to the Disclosures Tribunal by my Department over the last few days following a number of search and retrieval processes. 


I would remind the House of my statement last night wherein I explained that in responding to Parliamentary Questions about issues that prima facie fall under the Tribunal’s Terms of Reference, arose from my understanding that to engage in such issues would amount to a breach of the Standing Orders of the Dáil; would improperly encroach on the workings of the Tribunal; and would amount to a parallel process thereby undermining the Tribunal.  As you know Ceann Comhairle, I have sought the counsel of your office in respect of how to go forward in addressing parliamentary questions of this nature.


Ceann Comhairle,


The Tribunal has, in recent times, been sitting in private session because it is engaged in a scoping exercise in relation to term of reference (p) which addresses the matter of any targeting or discrediting of any Garda “who has made a protected disclosure” prior to the 16 February 2017.


I am of the view that because the Tribunal has not been holding public hearings, perhaps, Members have forgotten the very wide and comprehensive terms of reference of the Tribunal.  Indeed, many members of this House made important contributions and worked closely with my predecessor in agreeing Terms of Reference acceptable to this House.  My own view, confirmed by legal advice from the Attorney General’s office earlier today is that the Tribunal already has the discretion to examine the matters put forward in the Sinn Féin motion.  For that reason, Ceann Comhairle, the Government has decided to oppose the motion.


To elaborate further on the advice provided to me, I refer to Terms of Reference [e] and [h]


I have been advised that:


The combined effect of ToRs [e] and [h] could be viewed as encompassing examination of any communications between the Department of Justice and Equality, Ministers for Justice and Equality past and present, the Attorney General's Office and An Garda Síochána regarding "legal strategy"


And that further, regard should already be had for the present ToRs [e] and [h] which provide that the Tribunal is required:


[e]        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.




[h]       To investigate contacts between members of An Garda Síochána and:

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



I am satisfied that the Terms of Reference which this House formulated and agreed provide a wide discretion to the Tribunal and my priority and that of the Government is to let Judge Charleton get on with his critical work.


I urge Members to go back and read the record of the debate in this House on 16 February this year when we agreed the Terms of Reference.  On that date,



Deputy Jonathan O'Brien stated:


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


Deputy Pearse Doherty cleared welcomed the Terms of Reference.


Deputy Brendan Howlin stated:


I thank the Tánaiste for meeting me yesterday and for producing terms of reference which I believe encompass the issues I have raised. I wish Mr. Justice Charleton well. I hope his ambition to complete his work within the reasonable timeframe he has set out becomes a reality. The functioning of our State requires this. I expect his investigation will deliver a vindication to people whom the State has maligned. In darkness and shadows campaigns of vilification have been conducted. Perhaps the most important aspect of what we debate here today is that Mr. Justice Charleton will carry out his work in the clear light of day.


Deputy Jim O’Callaghan stated:


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


Ceann Comhairle,


I have just highlighted some aspects of a long debate but I believe they show a widespread endorsement in this House for the Terms of Reference set.  I believe that the reason the Opposition gave such a welcome to the Terms of Reference was because they recognised their comprehensive nature and the wide discretion afforded to the Sole Member, namely Judge Charleton.  We should let him get on with his critical work.


On Friday last, the Tribunal issued a Public Notice stating that: 


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


Noting that it is required “to inquire urgently into” the issues before it pursuant to the mandate of the Oireachtas as “definite matters of urgent public importance”, the Tribunal indicated that it would sit from Monday, 9 January 2018 in relation to terms of reference ), (b), (c), (e), (f), (g), (i), (j), (k), (l) and (m); in other words, the Tribunal will inquire into issues relating to the O’Higgins Commission and related issues.  The Tribunal indicates it will inquire into:


the allegations of Superintendent David Taylor as to alleged negative briefing against Sergeant Maurice McCabe and the knowledge, if any, Commissioner Callinan and Commissioner O’Sullivan, both now no longer in office, had of same, and whether Sergeant McCabe was subject to any attempt to “entrap or falsely accuse” him of “criminal misconduct”.


It goes on to say:


Necessarily included are telecommunications interactions, electronic and paper files bearing on same and any meeting relevant, including, but not limited to, that in Bewley’s Hotel on 24 January 2014.


A central part of this enquiry is as to attitudes to Sergeant McCabe and any translation of that into malicious behaviour or inappropriate action. In that regard, the tribunal is specifically mandated to enquire into any use by “Commissioner O’Sullivan” of “false allegations of sexual abuse or any other unjustified grounds” which may have been “inappropriately relied on … to discredit” him before the Commission of Investigation chaired by Mr Justice Kevin O’Higgins. That enquiry makes relevant any “contacts between members of An Garda Síochána” and the media, or “members of the Government” or any other “relevant person” at the tribunal’s discretion.  This hearing will incorporate any issue as to the RTÉ broadcasts of 9 May 2016 and the role, if any, of Commissioner O’Sullivan.



Ceann Comhairle,


It is imperative that the Tribunal get on with its work and I am legally advised that the extremely broad nature of this motion renders it quite unclear in the specific context of what any additional Terms of Reference might contain or seek to achieve in the public interest.


I believe, no-one in this House wishes to further delay a Tribunal which is undertaking vital work and which, indeed, has brought forward its work in recognition of “definite matters of urgent public importance”, and I think all of us in this House agrees they are now urgent.  I am advised by the Attorney General that the law governing Tribunals mandates that an amendment to the Terms of Reference would require a fresh resolution of both Houses followed by the Minister or Government obtaining the consent of the Tribunal of acceding to the request of the Tribunal.   This would clearly impact the timeframe for the Tribunal.


We all look forward to the Tribunal’s public sessions in January.


Thank you.