Owen, Gleeson have some hard questions to answer

THE political climate is entirely different from this day two years ago, when the Labour Party absented itself from the Government decision to appoint the then attorney general, Harry Whelehan, as president of the High Court. The circumstances are different also. There is no smell, or immediate chance, of a political head on a plate. But, like this day two years ago the events leading up to the removal of Judge Dominic Lynch from the Special Criminal Court and the consequential release and rearrest of 16 high security prisoners early last Thursday, raise a number of embarrassing questions which damage the Government's authority.

While the Taoiseach is right to say that Fianna Fail is obsessed with the events surrounding the fall of the last Government, the Opposition parties have good grounds for calling Mr Bruton, the Attorney General, Dermot Gleeson, as well as the Minister for Justice and deputy leader of Fine Gael, Nora Owen, to account for the latest judicial controversy.

As the inquiry begins today into why the Government decision of August 1st to remove Judge Lynch, at his second or, maybe, third request, from the Special Criminal Court and replace him with Judge Kevin Haugh was not executed until early last Thursday, a number of serious questions needs to be answered.

It is clear at this point from the official notification placed by Frank Murray, secretary to the Government, in Iris Oifigiuil on August 9th, that the Government's political and legal problems are compounded by the fact that the Government recorded a two part decision on August 1st: to remove Judge Lynch and replace him with Judge Haugh. One judge was notified, the other was not, in a half implementation of the Government decision.

Based on the statement and questioning of Mrs Owen in the Dail last Thursday, the following questions must be addressed by the Government:

Mrs Owen has direct political responsibility for the appointment of judges. It follows that she has the direct responsibility to execute recorded Government decisions recommended to Government by her on foot of a memorandum.

How, then, could she be unaware that the Government's decision to change Judge Lynch's duties on August 1st was not acted upon for three months and five days?

Is there no administrative system in the Department of Justice to notify a Minister that a Government decision, the highest form of decision, has been implemented?

The Attorney General, Mr Gleeson, wrote a letter to Mrs Owen on October 2nd, received on October 3rd, stating that there was "an impression amongst the judiciary that Judge Lynch was still a member of the Special Criminal Court". Mr Gleeson asked her to establish whether the Government decision had been notified to Judge Lynch and the President of the Circuit Court.

IT beggars belief that there was no system in the Minister's private office to refer an important letter from a Government colleague directly to her. That first warning letter was referred to the courts division instead. That division prepared draft letters of notification but they "had not been finalised" a month and three days later.

The real alert came in a second letter from Mr Gleeson to Mrs Owen, written last Friday week, November 1st. He warned that Judge Lynch still appeared to be functioning in the Special Criminal Court and that this could create "legal difficulties". How did it take five days for such a serious message to be received in the Minister's office and presented to her?

How, then, was it an assistant secretary, who is not in the courts division, who initiated the series of contacts which led to 16 prisoners being released and rearrested early last Thursday morning?

The Minister's answer to all of these questions, as the Departmental inquiry gets under way, is that there was "a lapse of administrative procedures". On the face of the known facts, however, there are hard political questions to answer also.

Is Mrs Owen, the Minister in the most sensitive Department in Government, so in the thrall of her civil servants that she is informed of important matters simply on a need to know basis?

How aware was the Attorney General on October 2nd that judicial decisions taken by Judge Lynch were potentially unsound for legal reasons? What was in that letter which Mrs Owen did not receive?

If it is accepted, as the Government says, that the Attorney General has no responsibility for judicial appointments, did he not have responsibilities in his dual role as legal adviser to the Government and guardian of the public interest to take the matter further? It would seem, on the face of it, that he should have informed the Government, as its legal adviser, of the potential problems for the State with Judge Lynch's judicial decisions. Did he even raise the matter with the Taoiseach?

Mr Gleeson and Mrs Owen are frequent attenders at the multi party talks in Belfast. They meet at Cabinet. Mrs Owen told the Dail that, to the best of her knowledge, Mr Gleeson was present at the last Cabinet meeting before the summer holidays on August 1st. Knowing that the decision had been taken to remove Judge Lynch from the Special Criminal Court suggesting, in his first letter on October 2nd, that Judge Lynch may not have been notified advising, in his second letter on November 1st, that Judge Lynch was still sitting in the Special Criminal Court and that "this could create legal difficulties", isn't it just extraordinary that he never spoke to Mrs Owen about it? Isn't it also strange that he was content to put the warning that there could be legal difficulties into a postal system where it took five days to reach the Minister?

Finally, as a matter of human curiosity, isn't it interesting that a judge who spends 10 years in the Special Criminal Court, with all of the security implications for his family, doesn't even receive a letter from the Minister for Justice of the day to thank him for his services to the State?