Madam, - I wish to take issue with your recent Editorial ("Trials and Tribulations" 13/2/08) regarding the Taoiseach's High Court action which makes a number of points that need to be addressed.
In particular, the suggestion that there is some contradiction between the Taoiseach's legal action and the Government voting confidence in the Mahon tribunal is not only simplistic, but wholly incorrect.
I have no difficulty in reconciling my support for the Government's motion expressing confidence in the tribunal and the Taoiseach's decision to seek a judicial review of certain procedural matters at the tribunal, for the following reason.
The Taoiseach's case is about ensuring that a tribunal established by the Oireachtas does not violate the Constitution or the law. The confidence motion did not and cannot authorise unlawful conduct by the tribunal.
The Government motion did call for the tribunal to promptly conclude its work as mandated. But that can only happen if the tribunal behaves in a proper manner and does not seek to act beyond the bounds of the Constitution or the law.
The Taoiseach's legal action does not prevent the tribunal continuing its questioning or inquiries, so there is no delay to its work.
Furthermore, in substance, all of the issues that are of concern to the tribunal and which may have been covered by the Taoiseach's remarks in the House, can be dealt with comprehensively without specific reference to Dáil statements.
As your Editorial points out, the tribunal is charged with an urgent inquiry in the public interest into certain planning matters, but no other tribunal has ever suggested that in doing so it can breach the Constitution or the legal rights of citizens.
It is remarkable that some people, who are strident about human rights and the protection of the individual in other contexts, seem totally indifferent to those issues when it comes to tribunals of inquiry that have already been found by the Supreme Court to have violated the right to a fair hearing.
I am especially surprised the Irish Times editorial makes no reference to the fact that if any individual is convinced that procedures are unfair, it is their constitutional entitlement to assert their right to due process, irrespective of whatever office they may hold.
With regard to the issue of parliamentary privilege, I would have thought that The Irish Times would be concerned about guarding the rights of members of the Oireachtas in respect of what is said in parliament.
The long history of the struggle for representative democracy suggests that we should be very careful about the erosion of parliamentary privilege.
The attempt in your Editorial to draw a comparison with the approach pursued by Cardinal Connell is totally inappropriate because the two situations are different in substance and different in the legal matters which apply.
Furthermore, the Taoiseach has made it clear that he is happy for the courts to have access to, and to scrutinise any documents or statements over which he is claiming privilege.
Your attempted comparison with Cardinal Connell is more curious still when one recalls that you yourself have sought to rely on journalistic privilege in order to withhold from the tribunal information which it seeks.
Contrary to the entire thrust of your Editorial, it must be pointed out that the Taoiseach has made it clear that he is fully committed to co-operating in every lawful way with the tribunal and has no wish to delay it.
But equally, the Taoiseach is entitled to act on the advice of his lawyers to ensure that his constitutional rights, like those of every other member of the Oireachtas and indeed every other citizen, are respected. - Yours, etc,
BRENDAN SMITH TD, Minister for Children, Department of Health and Children, Hawkins House, Dublin 2.