Last evening the Tánaiste answered questions on her knowledge of the adversarial approach of An Garda Síochána against Sergeant Maurice McCabe at the O'Higgins commission of investigation. The Tánaiste also published the email of May 2015. That email is damning. The Tánaiste was notified by email in May 2015 of this adversarial legal strategy. That email should have rung alarm bells for the Tánaiste. She would have been aware of the allegations against Maurice McCabe referred to in the email and that the Director of Public Prosecutions, DPP, had directed that no action be taken, and that the independent review mechanism, which she established and to which this was referred, also decided that no further action be taken. She also had met Maurice and Lorraine McCabe in October 2014 where they detailed this allegation to her and the trauma it caused them. The Tánaiste was told, however, that this very case, of which she was well aware and which had no foundation, was going to be raised by An Garda Síochána before the O'Higgins commission to undermine this man's credibility and integrity.

The O'Higgins commission was established to verify allegations in a dossier re Garda malpractice. It was never established to undermine a man's integrity, credibility or character. Furthermore, the Tánaiste had legal representation at the O'Higgins commission, which surely would have kept the Department and Minister informed of what was going on at the commission. It is simply not credible that the Tánaiste would forget about this email and its content, given the enormity of the McCabe issue up to then. Indeed the Tánaiste would have been appointed Minister for Justice and Equality because of this entire saga. It is interesting that when the adversarial nature of the O'Higgins commission became public knowledge the Tánaiste said to me, in answering questions in the House on 17 May, the hearings were not adversarial; they were inquisitorial. She was flatly denying its adversarial nature.

The Tánaiste says she forgot the content of the email but it is far worse that she did not follow up on the email. By passively acquiescing she became a bystander to a legal strategy designed to undermine a man's motivation, credibility and ultimately his integrity. This has echoes of the Tusla file revelations, an episode that nearly brought down the Government at the time. The Tánaiste stayed silent on that occasion. There was no reference to this particular email. The Taoiseach inadvertently acknowledged – misled - the House last week because of the Tánaiste's actions. The email came to her attention last Thursday. It was kept quiet for four days. God only knows whether, had "Prime Time" not asked the questions, we ever would have known about this email. Would it ever have been sent to Mr. Justice Charleton if that did not happen?

Does the Taoiseach accept that the Tánaiste failed Sergeant McCabe by not acting on this email and that by doing nothing, she allowed An Garda Síochána to seek to undermine his credibility as a person to whom she said she would offer the highest legal protection? She may not have thrown him to the wolves but she allowed them free reign and that is a fundamental failure to protect a man who, as the Taoiseach said yesterday, was wronged on several occasions by this State and again in this context.

All I can do at this stage is restate and remind the House of what I said previously, first, that the Tánaiste had no hand, act or part in the legal strategy pursued by the former Garda Commissioner. There is an attempt in some way to suggest in this House and other places that the State or State entities were acting in collusion or all acting together. That is not the case. The Garda has its own legal team and advice, as the Commissioner at the time did, and the Department has its legal team and advice. They are separate legal entities and particularly in the context of a tribunal or commission, they have to act separately and cannot interfere in one another's legal position. The Tánaiste, and we know this from the email of 15 May 2015, did not have any knowledge that such a legal strategy was being pursued until that email was sent on 15 May. That is after opening statements, after the fact, after the hearings were already under way.

The question Deputy Martin may ask is why the Tánaiste did not intervene, why she did not contact the Garda Commissioner or the Garda or do so through officials. The reason this was not done is in the email. The answer is given to Deputy Martin in the last paragraph of that email of 15 May: the Attorney General and the Minister were advised by officials that they had no function in this. As Deputy Martin knows, under the rules of a commission of investigation, it is an offence to release evidence from a commission and to try to interfere in the work of a commission or tribunal of inquiry.

I spoke to Sergeant McCabe last night. It was a relatively brief conversation. We spoke for perhaps 15 or 20 minutes. I felt, out of a courtesy to him, given that once again, through no fault of his own, he was at the centre of a major controversy, that he had a right to know what was in the email, at least before it was handed out in this House. I read the email out to him. He disputes its contents. He says these criminal allegations concerning sex abuse were not raised that day and not raised at all at the O'Higgins commission. He says the transcripts of the O'Higgins commission will show this. This leaves us all a little confused because we do not even know if the contents of the email were accurate. It was an email reporting a conversation between an official in the Department of Justice and Equality and the Attorney General's office. What was written in the email and sent to the Tánaiste was second-party or even third-party information. As Deputy Martin will know, Sergeant McCabe disputes that the issue that arose in the IRM, the criminal allegations, were ever raised at the O'Higgins commission.

Why did the Tánaiste not act? She did not act for the reasons I have given the Deputy. However, she did act in other ways: she established the Policing Authority, one of the most major reforms to have occurred in Irish policing in recent years; she asked the Policing Authority to take an interest in bringing about new procedures and guidelines as to how whistleblowers could be listened to and protected within the Garda; she brought in Transparency International, the leading organisation dealing with corruption and the protection of whistleblowers; and she did what a Minister should do, that is, not to interfere in a commission or try to influence someone else's legal strategy, but to try to change things and put the right procedures and new practices in place.

I am taking cognisance of the fact that both Deputies exceeded their allocated time by 40 seconds. I ask them to try to-----

It is a very serious issue.

I know that. If the House agrees to allocate extra time, I will have no problem with that.

I do not accept the Taoiseach's reply. No one has ever said the Tánaiste had a part in the legal strategy. We do not know who sent the email or to whom it was sent. Was it sent to the Secretary General? It only turned up last Thursday. Why the top of it was sheared off and why references to individuals were pulled from it I do not know. It states in the last paragraph "and I agreed". Who is the "I" who sent the email? I ask this rhetorically because I will make the point that the Tánaiste does not have to accept that straight away. She can engage with that person.

What is going on here? There are all the public protestations from the Garda Commissioner and the Minister that they will offer the highest level of legal protection to this man, and here the Minister is being told that far from offering the highest legal protection, the individuals involved are going to go for him and undermine him via a case which we know the DPP is not pursuing - which no one is pursuing - and in respect of which the DPP said there was no case to answer. If this does not raise alarm bells in the Tánaiste's mind, I simply do not know what would. The Taoiseach mentioned the Attorney General and his conversation with Sergeant Maurice McCabe.

Ceist.

I also spoke to Maurice McCabe. I referred to that yesterday. The content of what he is saying should alarm the Taoiseach even more because what is at the heart of this is a terrible vista: that an appalling set of actions were afoot to undermine this man's credibility and character. It is simply not good enough to say a Minister in charge of a portfolio relating to the most explosive issue to have hit the Dáil in the past three years merely stands by and allows the adversarial nature of the legal strategy to continue to undermine this man's credibility yet again.

It is important to point out as a matter of fact that all parties had legal representation at the commission - not the Tánaiste individually, but the Department of Justice and Equality, An Garda Síochána and, of course, Sergeant McCabe, who had separate legal counsel, separate legal representation, dealing with the issue in accordance with the rules and laws that govern commissions of inquiry. I think the Deputy is confusing the role of legal counsel for the Garda Commissioner with that of legal counsel for the Department of Justice and Equality, which are two separate entities.

I have nothing to hide. There is no one I am trying to protect. The email was sent by an assistant secretary in the Department of Justice and Equality to a number of people in the Department of Justice and Equality, including the Tánaiste's private secretary, who then passed it on to her for information, so she was informed that-----

May we have the full list of recipients?

I have no difficulty with that being done but I will have to check whether it is possible. There is nothing here to hide and there is no one here whom I or the Government is trying to protect. All we are interested in is the truth, and the best way we can get to the truth is to allow the tribunal to do its work. I ask anyone in this House or anywhere else who has information, and whose information has not yet been put in the public domain, information that I am not yet aware of, to put that information together and transmit it through the tribunal, which is the right thing to do. I have also asked the Department of Justice and Equality through my Department to do two things. First, I have asked it to go through a trawl of the documents again to see if there is anything that it has not yet come across, that it has not yet passed on to the tribunal and second, I have asked for a report on the implementation of the Toland report. The Deputy will be aware that a number of years ago, after the Tánaiste became Minister for Justice and Equality, she commissioned Kevin Toland to do a report on the functioning of the Department of Justice and Equality in order to set out a reform programme to modernise and improve that Department. I have sought a report on the extent to which that is being implemented.

The fact that the Taoiseach says now that he has ordered a trawl of documentation and that he is revisiting the Toland report in respect of the dysfunctionality of the Department of Justice and Equality simply underscores yet again the seriousness of this matter and the fact that it is not an isolated incident. There are now serious questions over the judgment, competence and credibility of An Tánaiste, Deputy Frances Fitzgerald, and I think her strategy has been precisely to protect her and her Government in this saga.

The email, which the Tánaiste claims she forgets reading, plainly sets out a deliberate and cynical strategy on the part of the former Garda Commissioner, Nóirín O'Sullivan, to undermine and attack the credibility of Maurice McCabe. It is also clear that the Tánaiste was made aware that the Garda legal team intended using serious criminal allegations against Sergeant McCabe which they knew and, more to the point, she knew had been disproved. We now all know that the Tánaiste failed to act, despite the fact that the Garda Commissioner is immediately accountable to her as Minister for Justice and Equality. The Tánaiste parroted the line that the whistleblower would be given the highest level of protection by Government while at the same time allowing the leadership of An Garda Síochána to pursue such a malicious - not an adversarial, but a malicious - legal strategy.

The Tánaiste was informed in May 2014 of the criminal complaint against McCabe. She knew that that complaint was disproved. How, then, when she opened and read the email a year later about the very same and disproved complaint, did she not grasp the importance of any plan to use this as material in the Commissioner's legal strategy, and how then did she forget ever having read it? The Taoiseach's position up to this point has been that the Tánaiste had no prior knowledge of the legal strategy before the fact. I take "before the fact" to mean before the cross-examination of Maurice McCabe by the commission. That cross-examination took place on 18 May 2015.

I understand the date on the email conveying the malicious nature of the Garda legal strategy was sent to the Tánaiste on 15 May. That is three days prior to the cross-examination. Is that not correct? Does this mean that Deputy Frances Fitzgerald sat back and allowed Maurice McCabe to go before the commission in full knowledge of the Commissioner's vicious strategy? I do not think that would be a matter of forgetfulness; that would call into question the competence, judgment and honour of the second most senior member of the Taoiseach's Government. It raises very serious questions over the Tánaiste's fitness for office. She was given the opportunity last night to clarify her position. She chose not to do that. We did not get the answers we need. How did the Taoiseach come into the Dáil and misrepresent the truth - the truth - that the Tánaiste did have prior knowledge of the legal strategy prior to Maurice McCabe's cross-examination? Why did the Taoiseach persist with the "no prior knowledge" defence? Is that still the Taoiseach's position? Does he have confidence in the Tánaiste? How can she remain on as Tánaiste?

Yes, I have confidence in the Tánaiste but, no, I am not satisfied with the fact that on a number of occasions - at least two in the past week - I have been given incomplete information from the Department of Justice and Equality. My role is to account for the Government to the House and it is not something I like to see happen. On one occasion it was with regard to the ODCE and it happened in part on another occasion when I got additional information after the fact. I am not satisfied with that. That is why I have asked for a full trawl of documents in the Department of Justice and Equality to occur. Any documents that are found should be transmitted to the tribunal. That is why I have asked for a progress report on the implementations of the Toland recommendations into the operation and modernisation of that particular Department. What I think is agreed in this House - I hope it is agreed - is that the Tánaiste had no hand, act or part in the Garda Commissioner's-----

On the Opposition side, Deputy Martin has at least accepted that-----

The Taoiseach, without interruption.

-----that the Tánaiste had no hand, act or part in-----

Maybe she should have. That is the accusation.

-----the Commissioner's legal strategy. She did not know about it until after the fact, which was after opening statements, when it was already under way.

That is not what the Taoiseach said last week.

Deputies, please. The Taoiseach, without interruption.

The Deputy is trying to move the goalposts.

Check the record.

After the fact is after it had already started and was under way, from the opening statements. We should point out the former Commissioner disputes some of this. That is also part of the tribunal. She has a story to tell, which I am sure she will tell in due course. What seems to be suggested here in the House today, certainly by Deputy McDonald and just now by Deputy Ryan, is that the Tánaiste should have had a hand, act and part in the Commissioner's legal strategy, that she should have ignored the advice of her officials and intervened in the work of a commission of investigation to tell a separate legal entity, the Garda and the Garda Commissioner, to change its legal strategy. If she had done that, we would be answering a whole different set of questions here today as to why the Tánaiste went against legal advice and the advice of her officials to interfere in somebody else's legal strategy.

I have here, courtesy of the Labour Party, which very generously has given me this text, the Official Report of-----

A new partnership.

Is Sinn Féin going into Government with the Labour Party now? Is there anyone Sinn Féin will not go into Government with?

-----the Dáil and it reflects the fact that the Taoiseach is either misleading the Dáil again or he is being more than disingenuous. He has defined on the floor of the House "no prior knowledge" very specifically as after the fact of the cross-examination. He is now saying the Tánaiste knew nothing about this until the commission was under way. That was not the Taoiseach's initial position. His initial position was that the Tánaiste did not know anything about this until after the cross-examination and that is simply not true. I have the record here.

Tuesday and Wednesday.

The Taoiseach said it twice - last Tuesday and last Wednesday. He needs to clarify it now. I do not think he should dig an even deeper hole or deepen this controversy by continuing to mislead the Dáil. The Tánaiste knew the nature of the legal strategy. Furthermore, she knew that information prior to the cross-examination of Maurice McCabe and she chose not to do anything about it and to allow Maurice McCabe go to the commission and to face that kind of malicious legal approach.

I will have to check the record. I honestly do not recall specifically mentioning the cross-examination. If it is the case that I specifically referred to the cross-examination and said the Tánaiste did not know until after the cross-examination, then I am happy to correct the record in that regard, if that is what I said.

It is what the Taoiseach said.

If that is what I said, I am happy to correct the record in that regard.

It is there in black and white.

The information I was given by the Department of Justice and Equality was that neither the Department nor the Tánaiste were aware until after the fact. That briefing did not specify what "after the fact" meant. We now understand----

Deputies, please.

We now understand "after the fact" to have meant after the opening statements, after the commission had already started its work and was under way.