Why was Michael Martin so confused about the Standing Order the Ceann Comharile used to block the debate on the Commission of Investigation TOR

30 June 2015 Follow up Questions on the decision of the Taoiseach to send Alan Shatter the draft terms of reference a month before the Dail saw them. Dail 30 June 2015

Why was Michael Martin so confused about the Standing Order the Ceann Comharile used to block the debate on the Commission of Investigation Terms of Reference.

Alan Kelly strongly criticises Seán Barrett over Dáil ruling Fiach Kelly Irish Times Jan 29, 2015

According to a note given to TDs, the Ceann Comhairle “has indicated that, while the draft Commission of Investigation (Cavan/Monaghan Division of the Garda) can be moved tomorrow, there can be not (sic) debate re same, as it would be in conflict with Standing Orders 57, as the matter is currently sub judice”.

Michael Martin 2015-01-28

A ruling was made but it was not communicated to the Members of the House. I understand there is a tradition of the Ceann Comhairle communicating to the Government Whip, who in turn communicates to the other Whips. There has been no substantive communication of that kind to the Opposition Whips or indeed the Opposition Members.

Why do the opposition have to depend on the Government Chief Whip to tell them decisions of the Ceann Comhairle's office?

Michael Martin 2015-01-28

There has been no substantive communication of that kind to the Opposition Whips or indeed the Opposition Members

Were opposition parties told the full information by the Gov chief Whip about the Ceann Comhairle office's decision to disallow Dail debate on the Guerin Commission of Investigation? Were they told the exact relevant subsection of the Standing Orders of the Dail, it doesn't seem they were.

Although Gerry Adams TD had just said,

We got an e-mail from the Taoiseach's Department, so our issue is with the Taoiseach. It states:

We have been advised that the Ceann Comhairle has indicated that, while the draft Commission of Investigation ... can be moved tomorrow, there can be no Debate re same, as it would be in conflict with Standing Orders 57, as the matter is currently sub judice.

It doesn't mention the Standing Order sub-clause which you can see MM was confused over.

Michael Martin apparently was confused during the Dail debate on the 28th of January.

Michael Martin: I am told that the Ceann Comhairle has issued this, and the Taoiseach confirmed that with me last evening. It has been confirmed to us that he invoked Standing Order 57(2) in regard to this issue

Michael Martin: Does the Taoiseach mean Standing Order 57(2)?

Frances Fitzgerald: No, it is Standing Order 57(3).

Michael Martin:The Taoiseach indicated to me last night that it is of relevance that this matter is not before a jury. The situation is somewhat difficult to comprehend. Standing Order 57(2) relates to juries, whereas Standing Order 57(3)-----

Frances Fitzgerald: It was Standing Order 57.

Michael Martin: The implication yesterday was that this related to Standing Order 57(2). We have received no correspondence from the Ceann Comhairle's office. I just want to raise that point. I am saying to the Leas-Cheann Comhairle, as the person in the Chair, that I do not think it is good enough, on a matter of such substance, that no one saw the letter that was written to the Minister before it was read out now.

Even if he wasn't told the relevant subsection why did he think it was SO 57 (2) not 57 (3), when the matter currently wasn't before a jury but High Court proceedings had been initiated by Shatter.

Consolidated Standing Orders of the Dail.

57 Debate: matters
sub judice.
Subject always to the right of Dáil Éireann to legislate on any matter (and any guidelines which may be drawn up by the Committee on Procedure and Privileges from time to time), and unless otherwise precluded under Standing Orders, a member shall not be prevented from raising in the Dáil any matter of general public importance, even where court proceedings have been initiated:
Provided that-

(1) the matter raised shall be clearly related to public policy;

(2) a matter may not be raised where it relates to a case where notice has been served and which is to be heard before a jury or is then being heard before a jury;

(3) a matter shall not be raised in such an overt manner so that it appears to be an attempt by the Dáil to encroach on the functions of the Courts or a Judicial Tribunal;

(4) members may only raise matters in a substantive manner (i.e. by way of Parliamentary Question, matter raised under Standing Order 27A, motion, etc.) where due notice is required; and

(5) when permission to raise a matter has been granted, there will continue to be an onus on members to avoid, if at all possible, comment which might in effect prejudice the outcome of proceedings

Joan Bruton notes the confusion of Michael Martin the next day.

Was the confusion and outrage genuine? Was he misinformed or did he assume it was 57(2) not 57(3) or did they just not believe any of SO 57 could be used to prevent debate on the Commission of Inquiry terms of reference.

The Ceann Comhairle's decision wasn't read in public in the Dail till the next day the 29th by the Deputy Chair Michael Kitt

Having regard to the fact that High Court proceedings had been initiated against Mr. Guerin in connection with certain conclusions contained in this report, the Ceann Comhairle was obliged to consider carefully all relevant matters in the context of Standing Order 57, which sets out the rules for debating matters that are sub judice. The Ceann Comhairle formed the view that, while the motion could be moved in the House, it was not in order for debate because of the risk of encroachment by the Dáil on proceedings before the High Court. In reaching that view, the Ceann Comhairle had particular regard to Standing Order 57(3), which reads: "a matter shall not be raised in such an overt manner so that it appears to be an attempt by the Dáil to encroach on the functions of the Courts or a Judicial Tribunal".

Michael Martint think order 57 is there to ensure Dail debate not to prevent it,

Standing Order 57 - the gagging writ, as it is called - was originally brought in to prevent what happened yesterday, because back then there was an attempt to do just what happened yesterday. It is now open to anybody to move a writ to prevent debate about particular items in the future.

Sub Judice Rule: Motion. 8 April 1993

Michael Martin pointed out,

The action concerned is not before a jury. How does a debate often start? The Ceann Comhairle or Leas-Cheann Comhairle states "notwithstanding anything in Standing Orders". That could have happened yesterday. The Leas-Cheann Comhairle or the Acting Chairman could have squared off the issue pertaining to Deputy Shatter's legal representations by warning Members not to say anything that might impinge on the courts and by putting the onus of responsibility on the Members. That has happened on countless occasions in this House, but it did not happen yesterday. The Ceann Comhairle had made his ruling.

Timeline
May 9th 2014, Guerin Report into action taken regarding allegations made by Gardai whistleblowers.
May 9th 2014, Alan Shatter resigned as Minister for Justice.
July 31st 2014, Alan Shatter initaite high court action against Guerin Report.
19 Nov 2014, Government decision to approve the draft Order (with terms of reference appended)
16 Dec 2014, Government agrees that decision of 19 Nov should now be implemented, taking account of recent correspondence on behalf of Deputy Shatter
19th December 2014, Draft of order entitled Commission of Investigation (Certain Matters relative to the Cavan/Monaghan Division of the Garda Síochána) order 2014 laid before Dáil Éireann
22 January 2015, Ceann Comhairle received a notice of motion from the Minister for Justice and Equality seeking the approval of Dáil Éireann to a draft order establishing a commission of investigation into certain matters relative to the Cavan-Monaghan division of the Garda Síochána.
27 January 2015, Motion delayed a day?
28 January 2015, Draft Commission of Investigation (Certain Matters relative to the Cavan/Monaghan Division of the Garda Síochána) Order 2014: Motion


Correspondence to Office of An Taoiseach re O'Higgins Commission of Investigation
Brian Gallagher of Gallagher Shatter Solicitors refers to Standing Order 56 rather the SO 57 in his letter page 21.

List of Documents being published in relation to O'Higgins Commission of Inquiry
Correspondence with Gallqgher Shatter Solicitors

9 Sept: Letter to Taoiseach from Gallagher Shatter on behalf of Deputy Shatter
10 Sept: Letter of acknowledgement by Taoiseach’s Private Office
7 Nov: Letter to Gallagher Shatter from Private Secretary to the Taoiseach
17 Nov: Letter from Gallagher Shatter to Private Secretary to the Taoiseach
21 Nov: Letter from Private Secretary to the Taoiseach to Gallagher Shatter
25 Nov: Letter from Gallagher Shatter to Private Secretary to the Taoiseach
26 Nov: Letter of acknowledgement from Private Secretary to the Taoiseach
8 Dec: Letter from Gallagher Shatter enclosing copy of letter sent to Ceann Comhairle on 25
November
9 Dec: Letter of acknowledgement from Private Secretary to the Taoiseach
17 Dec: Letter from Private Secretary to the Taoiseach to Gallagher Shatter

Ceann Comhairle is doing 'an excellent job' - Varadkar Eilish O'Regan and Niall O'Connor Independent.ie 02/02/2015

The Ceann Comhairle has also been asked to explain his actions by Government chief whip Paul Kehoe.

When? Where?
Links
Dáil Éireann Order of Business, Wednesday 28 January 2015