OPENING the two-day debate on the Government's confidence motion arising out of the Judge Lynch affair, the Taoiseach, Mr Bruton, admitted that what had occurred was "serious". He said that the issue should be carefully examined, but it should not be "prejudged", as it seemed to have been in the opposition motion of no confidence in the Government.
"At this stage", he said, "I do not know the full facts and reasons as to why the Government decision of August 1st was not promptly implemented.
The Minister for Justice had, made it clear last week that she did not know the full facts either. She had also made it clear that she did not want to give out partial information which could be misleading and leave the propriety of the inquiry she had established open to challenge.
"That remains a valid concern. We need to know not only what happened, but when it happened and why it happened. Only a completed inquiry will enable us to achieve that."
The inquiry team would not be looking solely at the "raw data" on the file. "They will be able to seek explanations from anyone, inside or outside the public service, who can throw light on anything in the file or the issues surrounding it. Where documentary information is incomplete or partial, the inquiry team will be able to ask questions designed to fill in the gaps. They will also be considering what procedural, administration or other changes should be made in the light of the outcome of the inquiry.
"And when that is all done, and the report is complete, the Minister herself will come and answer questions on that report here in the House for as long as members have questions to put."
Mr Bruton conceded that what had occurred in relation to Judge Lynch's removal from the Special Criminal Court, at his own request, should not have done so. The decision taken by the Government on August 1st should have been implemented immediately. It was not. "We do not yet know why."
The report of the inquiry set up by the Minister for Justice - being conducted by Mr Sean Cromien, former secretary of the Department of Finance, and Dr Edmund Molloy, an independent consultant - was expected to be with the Minister by next Monday. The findings would be made available to the Dail.
The Minister was being criticised and her resignation was being called for because she did not tell the Dail about an undated letter from Judge Lynch which had first been drawn to her attention shortly before she came into the House to speak last Thursday. Because the letter had been neither dated by the sender nor date-stamped by the recipient, it was not clear to the Minister that it had any relevance to assessing culpability for the non-implementation of the decision of August 1st. It was wrong to accuse the Minister of wanting to conceal the letter.
If the Minister had wanted to conceal the evidence she would not have set up an independent inquiry with full access to files and correspondence, and indeed full access to Judge Lynch or anyone else the inquiry team wanted to talk to.
Mr Bruton continued: "I want the facts to come out. If, to use Deputy Geoghegan-Quinn's well-chosen phrase, deputies want to engage in the `blame game', let them wait until they have facts. I want deputies to ask questions and have them fully answered. But, equally, I want deputies to be just in their judgments and to wait for the evidence."
In considering the evidence, they should consider the context the Ministers and Secretaries Act 1924, under which ministers were responsible in a formal way for all matters relating to their departments. This Act had given us "one of the most centralised governmental systems in the world". It had been criticised over decades. Prof David Gwynn Morgan, writing in 1985, had pointed out that departments included hundreds of civil servants and noted that it would be "artificial to regard one man as responsible for all their activities".
In this Government, however, ministers had been almost uniquely willing to take responsibility for personal errors. He instanced the Minister of State, Mr Phil Hogan, and the Minister for Defence and the Marine, Mr Hugh Coveney, who had resigned. Other ministers had accepted their responsibilities by making personal apologies in circumstances where that was required.
That was different to the record of the parties opposite when they were in power, especially in the 1987-94 period. No responsibility had been taken by any minister for what went on despite "an extensive and expensive recent inquiry".
This Government had decided to end the "impossible and archaic position" created by the Ministers and Secretaries Act. A [Public Service Management Bill would shortly be published, to bring Irish public administration up to date for the 21st century.
The Bill, which the Government wanted to see enacted early in the new year, would provide a legal mechanism to allow responsibilities and accountability within the Civil Service to be clearly set out and assigned to, identifiable individuals. The responsibilities of ministers and officials at different levels of administration would also be identified.
At the same time, the ultimate responsibility of ministers to the Dail and their positions as heads of their departments would be preserved. "Then we will no longer find ourselves in a situation where, because the basic legal framework for the Civil Service has remained unaltered since 1924, responsibility for the implementation of Government decisions is undefined in terms of clear-cut delegation and accountability."
The Public Service Management Bill would be the latest step by the Government in improving accountability at all levels, ministerial and Civil Service.
Other steps would be taken and he announced the following:
. An independent and permanent board, to be known as the Courts Service, would be set up within a week on a non-statutory basis. This body would be put on a statutory basis as soon as possible. Its function would be to manage a unified courts system and its chief executive would be recruited, through open public competition.
. Responsibility for the prison service would be transferred from the Department of Justice to an independent permanent statutory board. Further details would be announced shortly.
. The Centre for Management and Organisation Development of the Department of Finance had developed a tracking system for ministerial correspondence. He had asked the Minister for Finance to arrange that the system be put in place immediately in all Government departments to ensure that, as far as possible, correspondence would be dealt with quickly and efficiently.
. He had asked the Minister for Finance to issue new guidelines to all Government departments for the follow-through of Government decisions.
While he did not minimise the seriousness of the failure to implement the Government's decision in the Judge Lynch affair, Mr Bruton said that it was not the first time there had been a failure involving a judicial appointment. He instanced Judge Vivian Lavan, nominated to the High Court in 1982, for whom it was subsequently discovered there was no vacancy in the court and whose nomination had to be withdrawn. The Minister for Justice at the time was Deputy Sean Doherty.
Judge Jarlath Ruane had been appointed to the District Court in 1977. Because of uncertainty about whether he had the relevant professional practising certificates he had been obliged not to hear cases for over five years even though he was paid a full salary for that period. The Minister for Justice at the time was Deputy Gerry Collins.
Judge Michael Murphy had purportedly been appointed to the District Court in 1981, but his appointment was subsequently set aside by the High Court because he did not have the requisite statutory qualifications. Deputy Collins also made that appointment.
These were but three examples of administrative difficulties presided over by Fianna Fail ministers. "In no case did the relevant minister resign. In no case was there an apology forthcoming to this House. In no case was there an opportunity for this House to, debate the issue. Above all, in no case did the relevant minister institute an inquiry or cause steps to be taken to ensure that there would not be a repetition."
Mr Bruton praised the performance in office of the Minister for Justice, Mrs Owen. In less than two years she had presided over a major anti-drugs package, an anti-crime package, reform of the bail law and the courts, a major prison places programme and a root-and-branch review of the Garda Siochana.
Regarding the role of the Attorney General, Mr Bruton said that he had no function regarding the administration of the courts or in communicating or implementing Government decisions.
The Attorney General, in his letter, had requested that the Minister establish whether the Government decision regarding Judge Lynch had been notified to the judge and to the President of the Circuit Court. "At this stage, the Attorney General was working on the assumption that the Government decision had been in fact implemented, that Judge Lynch had in fact come off the court, but that it was simply the case that another judge with no direct involvement, Judge Kenny, had just not been told about this.
"It appeared to the Attorney General that it was likely that there had been some slowness or failure of communication during, the legal vacation which was still going on and that word of the changes had simply not percolated through to Judge Kenny - he was aware that the President of the Circuit Court was abroad on official business for an extended period during the summer and that judges generally were due to return to work on October 7th."
As to why the Attorney General did not follow up his letter of October 2nd orally or otherwise, Mr Bruton said that it was not his function - and never was the function of an attorney - to follow up his advices by demanding to know whether they had been acted on.
Clients, once advised, were normally responsible for action to be taken on foot of advice given by a professional adviser. "The Attorney General acts in that capacity vis-a-vis Government departments."
It was not part of the system to police compliance with advice. ,That would be normal for advisers, be they legal, medical or "otherwise, inside or outside thee [[public service. "Clients are expected to take responsibility" themselves for implementing advice received."
The Attorney General's second letter had brought things to a head "with results that we are all familiar with" - Because the independent inquiry had not completed its work, a definitive explanation of where in the administrative system things went wrong was not available at present. What he had given was an account of the actions taken by the Minister for Justice and the Attorney General.
Mr Bruton concluded with an account of the Government's social and economic programmes. "I am proud", he said, "to lead a Government that is united, stable and focused on the future. That unity, stability and focus is reflected in our economic and social achievements."