The Taoiseach announced the most topical matter today on Question Time in respect of the future of the Flood tribunal and the request of Mr. Justice Flood to be relieved of his position of chairperson from a current date. I received the letter a few minutes ago and have not had the opportunity to take advice on it but the Taoiseach said the Cabinet discussed the matter today. Two separate questions arise, the chairperson of the tribunal deciding the question of costs and the future of the tribunal.

I understand that last Easter it was indicated that the question of costs would be disposed of. Then we heard that former Minister Ray Burke was asserting he had a deal on costs with the tribunal. Following that there was a statement from Mr. Justice Flood categorically denying a deal. Will the Taoiseach tell the House if he has established what happened since last Easter? There have been no public hearings and now we read in this letter that the issue of costs has not been decided. Does the Taoiseach have information on why the costs have not been decided?

The Taoiseach got this letter last Wednesday or Thursday. What advice has he received, in so far as he has had the opportunity to take advice? How is it proposed that someone who did not hear the case or several cases can now be asked to decide costs? This is an issue of public interest in terms not only of the prospective recoupment of a significant amount of money to the Exchequer but also in terms of the punitive value of that facility to levy costs against persons or companies who obstructed the tribunal to encourage them to be more forward in future.

The House wants to be assured because the issue of costs is major. We need to hear unqualified assurances that the Taoiseach can pass the chair on to someone who was not seized of the issues when they were being heard at the tribunal.

I thank the Ceann Comhairle for allowing me earlier to give a detailed account of the circumstances surrounding the letter from Mr. Justice Flood and the questions that arise from it.

I cannot answer Deputy Rabbitte fully until all the matters are looked at but in the first instance he is correct. In the spring, around St. Patrick's Day, the staff in the Department of Finance and the Attorney General's office had to work over two weekends because there was a rush to get all the work related to costs done so they would be dealt with at that time, but they were not dealt with.

I cannot answer for the tribunal but it was made clear that the issue of a deal with Ray Burke was nothing to do with that and it was clear there was no such deal, irrespective of other issues. Mr. Justice Flood's letter explains some of the reasons for that. Mr. Justice Flood, who has done an excellent job in this matter, has not found it possible to deal with the strain arising from these issues and the burden of work that arises as chairperson.

As Deputies Rabbitte and Kenny said, costs are a major issue that could result in enormous liabilities to the State, although that is not necessarily what will happen. I am advised that it would create difficulties if another person takes the chair on this issue because the judges who are now involved were not there for the evidence in these cases. Legislation would be required, but issues could still arise.

I understand and respect the reasons set out by Mr. Justice Flood, but my advice is that concerns exist about the prospects of legal challenges to future reports of the tribunal in light of the contents of what Mr. Justice Flood puts forward. The Government is concerned about the risk of legal proceedings related to a report produced by a tribunal and the difficulties that might arise if the issue of costs were dealt with by someone else.

I do not want to get into legal issues but the Government, following the meeting this morning, set down its concerns and is sending them to Mr. Justice Flood. Let me be clear that the Government would prefer if Mr. Justice Flood was in a position to decide the question of costs and we will set that position out in a letter. As soon as Mr. Justice Flood has a chance to deal with this issue, I will be glad to exchange that information with the leaders of the Opposition.

I agree with the Taoiseach. If Mr. Justice Flood, having laboured long in the vineyard, wants to be relieved of this onerous responsibility, my party will agree to that but we would need assurance on the question of the costs. I note Mr. Justice Flood is indicating that he will stay on as an ordinary member of the tribunal and in that regard it is remarkable that the Tribunals of Inquiry (Evidence)(Amendment) Act 2002 contains a subsection which states:

If the chairperson of a tribunal is for any reason unable to continue to act as such chairperson, another member of the tribunal may be designated as its chairperson, and the former chairperson may continue to be a member of the tribunal.

It is almost as if someone foresaw this set of circumstances. We are not normally so insightful in the matter of amending legislation in the area of tribunals of inquiry. Is it not the case that one would expect that the costs would follow on the report, and the report is in the public domain?

The Deputy's minute is concluded.

Is the issue of costs stressed in the Taoiseach's reply to the letter from the Attorney General? Is the Taoiseach saying that the Attorney General has advised that he has similar concerns in this area? I draw attention to the penultimate paragraph of the letter—

The Deputy has gone over two minutes and he was entitled to one minute.

The tribunals have gone over by a number of years, Sir, so if you will just permit me one final question before I sit down.

I would prefer that leaders would try to stay within the time provided for in Standing Orders.

I will and I always do, Sir.

You are not, Deputy.

Will the Taoiseach comment on the penultimate paragraph in which Mr. Justice Flood requests that we would deal with the matter in the current Dáil session so as to allow, "the resumption of public hearings, including hearings in relation to costs." Is the implication that if we do not deal with it in the current session, public hearings will not be able to resume?

The Deputy asked if the Government is dealing with the issue of costs in the letter. We are dealing with a number of issues but costs is a very important one. We are making it clear that the Government would rather see Mr. Justice Flood deal with the issue of costs. On the reading of his letter that is unlikely – I accept Deputy Rabbitte, like myself, has had only a brief opportunity to go through it – but it is still our preferred position. If it is unlikely, legislation will be required to deal with the issue to reduce, as best we can – as that is my advice – the risk of legal challenges arising from the proposal that the costs be dealt with by a new chairperson. We will have to further examine that issue but there are concerns about the way we can ring-fence that or secure that position.

The second question the Deputy asked me was in relation to the penultimate—

The actual provision in the law for this set of circumstances.

Yes, that is in the legislation. It was probably envisaged in different circumstances. There were concerns some time ago about the position if anything happened to the sole member. That is the reason we amended the legislation to provide for three judges, and a stand-in judge, effectively having a total of four.

That is not the net point being dealt with here.

Deputy Rabbitte, I ask you to allow the Taoiseach conclude.

Is Deputy Rabbitte asking why it was set out in legislation in the first place?

The net point is why it provided for the retiring chairman to stay on at the tribunal.

I cannot answer that question. It is provided for in the legislation but I understand the original tribunal legislation enabled somebody to move out of his or her role. I understand that was in the old legislation as well, although I did not get a chance to check that issue.

On the question of whether the tribunal can continue with public hearings, the tribunal has not held public hearings for some considerable time because of the issue of costs, which has to be dealt with. My advice is that many other issues have to be dealt with to try to get on top of this one. While on the face of it perhaps the House should rush in and pass resolutions to allow the changes take place and bring in new legislation, but all my legal advice to date on the issue is that we should not rush it because the House needs to deal with it comprehensively. As I said earlier, the Attorney General had been in the Hague for the weekend and returned home to deal with the matter. My first meetings on this issue only took place today, and I wanted to bring it to the House immediately.