THE cross examination of the former Taoiseach, Mr Albert Reynolds, began yesterday in his libel action against the Sunday Times at the High Court in London. He is suing the newspaper over publication of an article in its British editions of November 20th, 1994, which stated that he misled the Dail and his ministerial colleagues.
Mr James Price QC, for Times Newspapers, put it to Mr Reynolds that, between Tuesday November 14th (1994) and Wednesday November 15th, he did "a complete U turn" on the suitability of Mr Harry Whelehan to hold the Presidency of the High Court. "I most certainly did not involve myself in any U turn", Mr Reynolds replied.
The former Taoiseach said that the position on the Tuesday, when he had addressed the Dail, was that he had no "definitive information" from Mr Eoghan Fitzsimons (the then newly appointed Attorney General) on the Duggan file. He had received that on the Tuesday night and, consequently, the status of the Brendan myth case - as the first to be dealt with under the terms of the 1987 Extradition Act had changed. He did not regard that as a U turn.
He agreed with Mr Price that he had backed Mr Whelehan "to the hilt" for the position of High Court President in his Dail speech on the Tuesday.
Mr Price then referred him to his Dail speech of Wednesday November 15th, in which he had said that, if he had known the previous Friday what he then knew, he would not have appointed Mr Whelehan. Some of the sentences he had included in that speech had come from the Labour Party, he agreed, as a quid pro quo for their staying in government.
He had told "the truth, the whole truth and nothing but the truth" on both that Tuesday and Wednesday.
Mr Price read out details of the Duggan case. Mr Reynolds, at his suggestion, agreed that it was similar to the Smyth case.
Mr Reynolds repeated that there had been different views between Mr Fitzsimons and a senior legal official in his office as to whether the Duggan case was the first to be considered under the 1987 Act, or the Smyth case. The point was "crucial", as the former Attorney General, Mr Whelehan, had said in a report to him that Smyth was the first case, and he had conveyed this to the House. There were "serious consequences" if Duggan was the first case.
Mr Whelehan had been "questioned closely" on the Smyth affair by the Cabinet at its meeting of Friday, November 11th. Mr Reynolds had been quite satisfied that his Government colleagues "thoroughly understood and accepted the good faith of Mr Whelehan".
"Mr Whelehan's explanation of the long delay was that, after a lot of research, it had not been done before. That was his senior legal assistant's explanation - that it had not been done before", Mr Reynolds stated.
He agreed that, on Thursday November 10th, he had received a letter from Mr Dick Spring expressing dissatisfaction with Mr Whelehan's report of the previous day, which gave his account of the delay in the Smyth extradition case. Mr Spring also said that neither he nor his Ministerial colleagues could support Mr Whelehan's appointment as President of the High Court until there was a satisfactory explanation from Mr Whelehan and public concern about the matter had been allayed.
Mr Reynolds had agreed to circulate the Whelehan report and had agreed also that Mr Whelehan should be questioned about it in the public domain. Being Attorney General, it was felt the most appropriate place for such questioning was around the Cabinet table. There were constitutional problems with questioning Mr Whelehan elsewhere. And he himself would answer any questions on the matter in the Dail.
He had not anticipated the withdrawal of Labour ministers from the cabinet meeting of November 11th at which Mr Whelehan had been questioned. Nor did he understand that this was a withdrawal from Government. He had believed that they were simply absenting themselves from the decision to appoint Mr Whelehan as High Court President.
He had been reinforced in this view by a phone call from Mr Spring shortly afterwards. "There was no mention of a break up", he recalled. He had fulfilled all Labour's requirements concerning Mr Whelehan - the report had been circulated, questions had been answered in the Dail and Mr Whelehan had been questioned in "the only appropriate forum".
"Are you trying to suggest the walk out was an irrational act?" asked Mr Price. "I don't know what they had in mind", Mr Reynolds replied.
"Is it not possible it was because you hadn't answered questions (sufficiently) in the Dail to allay public fears?"
Mr Reynolds said that he could not tell. "No one could judge what was satisfactory. Oppositions are never satisfied." But he had disclosed all the information available to him.
He agreed that, after a press conference given by Mr Spring the following Sunday evening, "it became clear there was a crisis and the Government was in doubt".
"And you'd be out of a job?" suggested Mr Price. "Correct", said Mr Reynolds.
Recalling the events of Monday November 13th, Mr Reynolds said that, at his first meeting on that day with the new Attorney General, Mr Fitzsimons, there had been no mention of a Duggan file. Later, he had joined a meeting between Mr Fitzsimons and some of his ministerial colleagues. The Attorney General had mentioned that there might be a new case which could turn out to be important. He could not recall the name. It was identified as the Duggan case in consultation with the then Minister for Justice, Mrs Ma ire Geoghegan Quinn.
Mr Fitzsimons did not know whether his predecessor, Mr Whelehan, had been aware of the Duggan case and explained that he and the senior legal assistant in the AG's office had "disagreed violently" on the status of the case.
The Attorney General had been advised to research the matter further. He had his own clear view of the case's relevance, but Mr Reynolds and his ministers had not regarded it as clear cut. They also felt that Mr Whelehan should be informed and that he should be asked to postpone his swearing in until there was clarification.
Mr Reynolds did not accept that Mr Fitzsimons had a clear, definitive view of the relevance of the Duggan case at that point. He had expressed an "on the one hand and on the other hand view". Mr Reynolds wanted a clear, definitive written view. That was why he had asked him to god away and do more work (on it).
"I had to be sure", Mr Reynolds said. If the Duggan case stood up, the consequences would be "catastrophic" for Mr Whelehan. That was why he needed to know.
Mr Reynolds disagreed that, because of this, he was in no position to endorse Mr Whelehan for the High Court position. He had no definite advice to change his view as to Mr Whelehan's suitability.
He had given the full facts to the House, as he knew them at the time, in his speech on the Tuesday and during the following questions. He said that his focus on that Tuesday had been on dispelling an atmosphere of rumour, innuendo and cover up. "That was the focus, not Duggan."