I was making the point that the Minister was opposed to the amendment put forward by Deputy Woods on the ground that it required the person in charge of the Garda station to visit the person detained once every hour and to inquire whether he had any grounds for complaints. It is highly unlikely that a person, other than a hardened criminal or a person used to such conditions, being detained in any of the stations in the Dublin area or in the Bridewell would have any opportunity to sleep and therefore he would not in the normal course of events have to be wakened up to have these questions put to him. The eight-hour rest period allowed for under the detention section is only eight of the 20 hours which is allowed and presumably the other 12 hours would be taken up with questioning by the Garda. It is not unreasonable to expect that the person whose duty it is to ensure the well-being of the person detained would have the right to go at regular intervals into the interview room and ensure that everything was in order and find out whether the person being questioned had any grounds for complaint. I would urge the Minister to reconsider his attitude to the amendment. There seem to be grounds for tightening it up, but if detention is to be accepted — I would not wish it to be — there is clearly a need to ensure that every possible protection is granted to those who are liable to be affected.
Criminal Justice Bill, 1983: Committee Stage (Resumed).
As a layman with no legal experience I would not be too fussy about whether the safeguards for people detained in custody are enshrined in primary legislation or in regulations brought in by the Minister. I listened to the Minister's assurances that he would consider introducing a motion whereby these regulations could be debated by the House. I am satisfied that would be the better course, because this House could change the regulations in a more speedy fashion than if they were enshrined in legislation.
I am pleased to note that the Minister has found merit in many of the suggestions contained in the amendment put forward by Deputy Woods. I would urge the Minister to give favourable consideration to the suggestion that people in custody be given an opportunity to take notes and supplied with the necessary material. It can be difficult for a person to remember what he did yesterday unless he makes a note of it. The taking of notes would be especially important in a case which might not come before the courts for some months.
I am pleased at the provision in subsection (3) of amendment No. 24 that if the Garda fail in some way to carry out the regulations it will not affect the lawful custody of the person. The public have for too long been frustrated by the fact that people before the courts have been let off on technicalities. This section will put an end to that.
Subsection (4) of the Minister's amendment is crucial because it deals with the problem of gardaí who do not obey these regulations. There may be minor discrepancies where a garda would forget to put in the name or the time accurately. There could also be serious breaches of the regulations. The Minister has told the House that strip-searching will not be allowed under this Bill. It is allowed only in regard to the Misuse of Drugs Act and the Offences Against the State Act. If a garda were to commit the serious offence of strip-searching a person under this Bill, what sort of punishment would he receive? If we are giving extra powers to the Garda it must be guaranteed that people in custody will be treated lawfully and that any garda acting outside the law will be punished. The Minister is aware that I have a problem in this area, and I would welcome an assurance in this regard.
I am happy that the Minister is in agreement with many of the safeguards I have proposed. I accept that it may subsequently be found that other safeguards are necessary. This could possibly be changed, with experience. We might get the best of both worlds by inserting the safeguards which are directly connected with the powers given within the Bill and also accepting the Minister's amendment, giving him the power by regulation to make other regulations and amendments in the future. The Minister has shown himself quite willing to make regulations along these lines and to ensure that these are suitable regulations, not creating any undue administrative burden.
The requirements would be met by taking our proposed amendments. The Association of Criminal Lawyers have said that the Act may come under the scrutiny of the European Commission on Human Rights. If so, it would be essential that the statute include the powers which are the safeguards — that they would be seen to be in the Act. On the one hand, one would have powers given to the Garda and on the other reasonable safeguards within the Act related to those powers, in so far as they can be related at this stage. A power is also left to the Minister to make further regulations where appropriate. By combining the two we should probably have a much better Act in the long run. In that respect we agree with the Minister's amendment No. 24, in so far as it gives him power to make regulations providing for the treatment of persons in custody in Garda stations.
Initially I talked only about subsection (10) of amendment No. 16 with all the further paragraphs. Since we are taking all these together, I wish to say something about the other subsections. On subsection 11 (a):
Where a person is detained pursuant to this section he shall not be questioned for the purpose of the investigation for a consecutive period in excess of 4 hours.
The Minister says that that is already fairly well the practice. In fact, the practice would seem to vary somewhat at present — in some circumstances the period being longer, but I accept that may frequently be the practice. Nevertheless, the O Briain Report recommends clearly on page 18, section 58, that the maximum consecutive questioning period should be four hours.
Some studies and research are also worth mentioning. One of the great disadvantages in this area at present is lack of experience of this kind of measure of detention on suspicion, but figures are available elsewhere. A study was published in the Criminal Law Review, page 596, under the heading: “Confessions and Police Interrogation of Suspects” by Barry Mitchell, Lecturer-in-Law, Coventry, Lancaster Polytechnic. This provides some interesting information on this kind of question. In relation to the report of the Royal Commission on Criminal Procedure, they were concerned about interrogation of suspects by the police. A number of studies were therefore undertaken under the auspices of the Royal Commission and some of the results of these are of considerable interest. Particularly of interest is the work of Baldwin and McCondrel in their examination of the importance of confessions in Crown Court cases held in Birmingham and London. Nearly 86 per cent of defendants were questioned by the police for less than two hours. In effect, they did not seem to need very greatly extended periods of questioning, much of their required information being obtained in a fairly short time. Those accused of non-sexual violence were for the most part interrogated very briefly. Nearly 89 per cent were actually questioned for less than one hour.
From conversations I have had with members of the Garda force in relation to this matter, a great deal of the information required will come in the first four hours in any event. I know that the Minister can argue that there will be cases in which it will take many hours and many days, but these are exceptional cases. We must look at the statistics when we are bringing in legislation for general law. We are not talking here about subversive crime but about any crime to which a five year sentence can apply. I mention that in support of subsection (11) (a) of my amendment suggesting that a continuous period of interrogation in excess of four hours should not be undertaken. Also a break in this period of interrogation should be of an interval of at least one hour since the person was last questioned for the purpose of the investigation. The whole intention is to try to keep to normal questioning and away from any form of torture by mental abuse, or wearing people out. This is in line with what the Garda think is necessary in the vast majority of cases and the Minister says that this is already fairly close to the practice.
Subsection (12) (a) is as follows:
Where a person is detained in a Garda Síochána station pursuant to this section the member in charge shall, from time to time during any such period of detention visit the detainee, and in particular shall do so at least once every hour, and shall on the occasion of each visit enquire from that person whether he has any complaints concerning the circumstances of his detention.
Mention of a member in charge brings in some element of responsibility and the concept of the custodial guardian which the Minister appears to accept as a valid concept. The Minister has mentioned the question of waking somebody up during that period and others have mentioned it also, but that is not a serious problem. It would be simple to amend the legislation so that somebody sleeping would not be disturbed.
Apparently, at present a log book or day book is kept in Garda stations and a good deal of this information on visits, meals and so forth is logged. The Minister has said that he would not be inflexible in relation to this area and that periodic visits would seem to be appropriate.
Subsection (12) (b) is as follows:
Where a complaint is made by or on behalf of a person arrested or detained pursuant to this section concerning the circumstances of his arrest or his detention to any member of the Garda Síochána such member shall forthwith communicate the details of the complaint to the member in charge of the Garda Síochána station who shall enter the details of such complaint in the records of the Garda Síochána station.
The purpose there is to put an onus on any member who may be involved, even if he happens to be the person doing the questioning, to convey the information to the member in charge who will then enter it in the book. If the complaint is made about the person questioning, he may not want to convey it to the member in charge, but we could put an onus on such interrogator or questioner to convey that information to the member in charge.
Paragraph (c) states:
Where a complaint is made by or on behalf of a person arrested or detained pursuant to this section, in connection with his arrest or the circumstances of his detention, the member in charge of the Garda Síochána station shall enter in the records of the Garda Síochána station details of any such complaint without delay.
The Minister has given an undertaking that there is to be a complaints commission so there will have to be provisions like this to fit in with the operation of the section. That is why I believe it is important to have them in the statute. Subsection (13) (a) states:
Where a person is detained in a Garda Síochána station pursuant to this section he shall, at any time during such a period of detention, be entitled to make and retain notes in writing.
I believe it is important that a person should be in a position to assist his or her memory subsequently in any court proceedings that might take place. The Minister said he would consider this. From some of the cases we have seen it is quite clear that a person's recollection of the details subsequently are quite important. Even in relation to the protection of the gardaí who are doing the questioning this is very important to ensure that there are no misrepresentations of what happened or forgetfulness about what happened. Then there is the question of the length of time that one is interrogated for. It is only reasonable that a person should have available, if he or she wants it, material to take notes during such a period.
The final subsection, subsection (14), states:
Where a person detained pursuant to this section is questioned for the purpose of the investigation the entire of the questioning shall be recorded by electronic or other means.
The Ó Briain Report suggested that the feasibility of such studies should be looked at. I hope the Minister will at least undertake such feasibility studies. There is a lot of evidence from elsewhere that there is resistance among the Garda to any of this type of recording, that there might be a suggestion that their interrogation would not be of the highest order and fairness.
Various kinds of electronic means have been used. In one instance the video recording would ensure that there were no physical acts which were particularly threatening or upsetting for the individual. If a person is bruised that will be seen afterwards. It is possible to have physical aggression which would be taken up on a video screen. We saw on Second Stage that there were instances in the United States and there were particular States where this actually applies and that kind of video recording is made. The full recording of sound needs a lot of questioning. There are various reservations because in some cases the main questioning has been done before the recording has been turned on — that is one of the allegations made — and consequently the final questioning tends to be a very quick one. As it stands at the moment it is fair to say that there is not enough established about this whole area and how best to use it. One of the arguments put forward by the Garda is that if a person sees a taperecorder he or she will not give other information which would be given by word of mouth. That could be a practical difficulty.
I put this amendment down so that we could encourage the Minister to carry out feasibility studies and pursue the question of recording by electronic or other means to try to get suitable recordings. The two people, McConville and Philip Morell have done an interesting study in relation to recording. This is referred to in the Criminal Law Review, 1983, page 158 and subsequent pages. They talk about where it was introduced in some of the areas and where there was considerable suspicion about the system. They say that one immediate result in both areas was that the number of suspects interviewed dropped from the level obtaining in the pre-experimental period. The second clear effect on the police, they said, has been on the duration of the interrogation. In both Dundee and Falkirk taped interviews, were with only minor exceptions, considerably shorter than those reported during the pre-monitoring period.
There is a lot to be considered. At this stage I could not say any more than that the Minister should carry out the feasibility studies. The Ó Briain Report suggested that feasibility studies should be initiated at once to establish if video taping of interrogations in the investigation of serious crime is a viable proposition and, in addition, tape recording should be tried on as wide a basis as possible to discover if this would be feasible. As the Minister pointed out this was quite some time ago. It is time those feasibility studies were undertaken.
I believe that the Minister is broadly in agreement with having safeguards. There are, quite naturally, some differences in regard to some of the details. The main difference is whether it should be in the Bill or whether it should be purely by regulation. Those which are directly related to the powers given in the Bill should be in the Bill and the Minister should have power to make regulations beyond that, where he sees fit. As the Minister said, many things which were mentioned here are being done as part of a code of practice, so the ones we are talking about should not involve much additional administrative work. I appreciate that this is a problem. It is surprising that there has been so much comment along the lines of safeguards bringing about an increase in the administrative workload. If many of them are being done as part of a code of practice it can hardly have any real influence on the workload if those others are contained within the Bill as specific requirements. I take the Minister's attitude in relation to it but I believe we should have within the Bill the ones that are directly related to powers that are in the Bill. The Minister could then consider what other regulations he wants to have and he would have that power generally to make regulations where he considers this necessary.
I believe there is basic agreement in relation to the need for regulations or a code of practice when people are in custody. Two view points have been put forward in relation to whether it should be in the Bill, statutorily set out, or brought in by way of regulation. Initially, I felt it did not make a lot of difference. Probably in reality it would have the same effect. However, in relation to the time scale and in relation to any amendments which might need to be brought in it might be slightly quicker to bring them about by regulation. At times there seems to be a slowing down in the legislative process. I was glad the Minister was able to report progress on the complaints procedure. I hope this will come before the House soon. The Minister indicated it was at an advanced stage and perhaps he cannot be more definite on that.
The Minister also indicated that some progress was being made with regard to regulations. Perhaps in the aftermath of this debate he will have to consider if some other items should be incorporated in the regulations. They will have to be twofold. Certain points such as the time of arrest will be recorded. There is also the question of people in detention and their basic entitlements in the way of refreshments, meals, visits by their relatives or their solicitor and medical treatment if that is necessary. The place of detention will obviously be a prison but it will have to be up to a certain standard. In drawing up the regulations the Minister must ensure that basic justice is given to the detained person. However, the regulations must not be such as to ensure that a person on a serious charge and where there is substantive evidence that he is guilty can walk away from the charge because of the fact that one little point was not adhered to when he was detained. We must ensure that the procedures and administration in a Garda station are carried out in an efficient way. The regulations will have to cover a wide area. Regard will have to be had to the basic entitlements of people to which the Garda will have to adhere when interviewing and detaining people in custody.
I hope the regulations will be brought before the House and that we will have an opportunity to discuss them and if amendments are necessary I hope we can put them forward. I am sure the Minister will have regard to points of view that have been expressed in this debate and elsewhere. It is important that the Minister should bring forward the regulations as soon as possible. Some of the proposals put forward by Deputy Woods are to be commended. There is always room for improvement in any legislation that is brought before the House and I am sure Deputy Woods accepts that. We would have liked to discuss the regulations with the Bill. However, I understand the Bill will not take effect before the regulations and the complaints procedure are in force. This is the right attitude because the House will have an opportunity to discuss them.
There is general agreement on the need for regulations or a code of practice. The measure will have to be drafted carefully. It will have to be specific in some instances but not to the extent that it will totally mesmerise the Garda so that at every point they will have to write down what they are doing at all times. In other words, the court must be free to interpret that the person detained was dealt with in a proper manner and if some points were omitted, then the Garda can face disciplinary measures on another level. In the case of a person who is substantially guilty, the fact that one item was not adhered to when he was in detention should not mean that he can walk scotfree from a very serious crime.
Outside this House I have expressed my reservations about section 3 in its entirety and its challenge to the civil liberties of the law-abiding citizen. I see the section as extremely dangerous by any standards of the legal system of any nation. I realise that my party have accepted it in principle and as I am a democrat in that party system and as I accept the majority view I accept that the section, after being clarified, must be given passage through this House.
I appreciate the Deputy's concern but we are at present dealing with amendments Nos. 16 and 24 and at the end of this discussion we will be dealing with the section. Perhaps therefore the Deputy's general remarks could be retained for that part of the debate.
I am coming to amendments Nos. 16 and 24. I was merely giving a preliminary introduction to my observations on those amendments. I accept that the section will pass through the House but I accept it extremely begrudgingly. One has to keep repeating that if one criticises this Bill it is then suggested that one is in some way anti-Garda. My record over 20 years in this House has been anything but anti-Garda; I am extremely pro-Garda. That is why I am now expressing these views.
I come now to Deputy Woods's amendments, in particular amendment No. 16, which proposes the insertion of various subsections at the end of section 3. These are reasonable amendments. Again, reverting to the principle of the Bill, I must say that it is a most bureaucratic one with pieces of paper for this, that and the other which one has to sign. I do not know that that constitutes a very good system, but in the meantime it has to happen. Indeed the number of documents one may have to sign indicates the treacherous nature of the Bill itself, the mere fact that one has to have such additional safeguards.
Deputy Woods's amendment is extremely proper. I totally disagree with the Minister's amendment No. 24 where he says that he intends making regulations in order to in some way perfect the Bill. This Bill demands that anything pertaining to it should be incorporated in the body of the Bill itself, that everything should be up front. We should not be seeking another regulation for this, that or the other thing. Indeed it is a Bill about which I personally have the gravest of doubts. I am accepting it merely by virtue of the party system which must be seen to be working——
The Deputy appears to be reverting to his old argument.
The reality of Deputy Woods's amendment is that his proposed new subsections be incorporated in the Bill itself. In order to indicate how reasonable is Deputy Woods's amendment I might quote subsection (11) (a), which says:
Where a person is detained pursuant to this section he shall not be questioned for the purpose of the investigation for a consecutive period in excess of 4 hours.
I consider that a person being questioned for four hours is being given a hard time. I do not know if a person has to be questioned. It would not be unreasonable to expect that the Minister would accept that amendment. I might quote further subsection (11) (b) of that amendment which says:
A period of questioning shall be deemed to be consecutive if there is not an interval of at least one hour since such person was last questioned for the purpose of the investigation.
I would not give any kudos to the Minister for accepting that portion. Then, Deputy Woods's amendment goes on to deal with the various other proper protections of a person so detained under section 3.
We come then to the Minister's amendment No. 24, the first portion of which reads:
6. —(1) The Minister shall make regulations providing for the treatment of persons in custody in Garda Síochána stations.
(2) The regulations shall include provision for the assignment to the member of the Garda Síochána in charge of a Garda Síochána station...
The third paragraph of the Minister's amendment reads:
(3) A failure on the part of any member of the Garda Síochána to observe any provision of the regulations shall not of itself—
—This is something the Minister might explain to the House—
render that person liable to any criminal or civil proceedings or of itself affect the lawfulness of the custody of the detained person or the admissibility in evidence of any statement made by him.
That is a strange paragraph which I would ask the Minister to explain very carefully and in detail. The final part of the Minister's amendment reads:
(4) A failure on the part of any member of the Garda Síochána to observe any provision of the regulations shall render him liable to disciplinary proceedings.".
I presume "disciplinary proceedings" are those contained within the proposed Garda Complaints Tribunal or those within the current Garda regulations, another question the Minister might answer in detail.
Deputy Woods's amendment proposes the incorporation of its various parts in the Bill itself whereas the Minister's amendment is to be effected by regulation. Subject to whatever the Minister may say about those proposed regulations, I contend that Deputy Woods's amendment should be accepted in its entirety.
I welcome the fact that the regulations will be introduced, debated and accepted by this House before the detention powers being given in this Bill are implemented. Nobody in the House can stress the importance of that sufficiently.
It is of great importance that we concentrate on, and have the Minister reply to, the question of the availability of facilities regarding such detention. Certainly I would endorse the feasability and, hopefully, the implementation of, for instance, electronic recordings within Garda stations because there is a need for them. Without going into the sophistication and technology of electronic video recordings and so on, the detention powers given in this section would require a certain amount of space and comfort that I believe may not be available throughout the country at present. They are of importance and relevance and, if not available, I should like to know what are the immediate proposals for making them available?
We all have our concerns about this section but there is no point in our continuing to debate it unless we feel that the very basic facilities are to be provided for the protection of people being detained, that not alone are they fully safeguarded but that a basic standard of comfort is also provided. There is a need for us to concentrate totally, in regard to the introduction of any regulations or in agreeing to any amendments here, on the need for the Garda Síochána being trained in their implementation. I will leave it at that at this stage.
What amazes me is how easy it is to please some people when they move to that side of the House. Nothing would please them when they were over here in their great crusading exercise.
Limerick East): It is very easy to be liberal when one is in opposition.
We have here something which the Minister himself admits constitutes an erosion to some extent of civil liberties. Perhaps it is necessary in the context of the present crime situation to erode civil liberties to some extent but the Minister has also accepted that, when there is legislation which erodes civil liberties in a democracy, there must also be adequate safeguards. Unfortunately there is a wide divergence between the Minister's actions and his words. He has not provided adequate safeguards in this Bill. What are the safeguards provided? He tells us the regulations will be implemented regardless of how detailed, how wide, or how specific these regulations are. The Bill states in black and white that a breach of these regulations will not of itself render the evidence inadmissible.
(Limerick East): On a point of order, this morning I explained at great length exactly the point the Deputy is now making. I appreciate he had to be elsewhere this morning but I cannot see myself in the position of making three quarters of an hour or an hour's explanation for the benefit of individual Deputies who come and go. Deputy Andrews raised exactly the same point. I explained the point in great detail and anybody who heard that explanation accepts the validity of what I am doing. I can go over it all again for the benefit of Deputy O'Dea but I do not think Deputy O'Dea should be in the position of compelling me to repeat all over again my intervention this morning.
I appear to be getting under the Minister's skin. We are dealing here with very serious legislation.
(Limerick East): The Deputy is not entitled to repeat on Committee Stage.
I have a certain function to perform here and the Minister should not arrogate to himself the function of the Chair.
Repetition is disorderly.
I accept that, but the situation is that there are no safeguards being introduced to alleviate this Bill. That is the reality. Our amendment suggests certain safeguards. It is not radical. With all due respect to Deputy Woods, he proposes in this very imaginative amendment the minimum obvious safeguards needed. That is the point. Deputy Shatter says our suggestion is inadequate. If that is so, why would the Minister not agree to accept the amendment? There are obvious minimal safeguards which should be included in the primary legislation. That is our view. The accused should be told what his offence is.
(Limerick East): That is the existing law.
Not in all cases, as the Minister well knows. Read the record. An obvious safeguard is that the accused should not be questioned for four hours, that he be given at least one hour in order to complain about his detention, if he has any complaints about the circumstances of his detention. This is a minimal safeguard and I cannot see why the Minister will not agree to it as part of the primary legislation but rather include it under some regulation which the court may decide the Garda may break at will. This is not a criminal justice Bill. The justice element is missing. There are no adequate safeguards and the Minister will not accept even the minimal safeguards contained in our amendment.
With regard to the Minister's amendment providing for regulations, I welcome the fact that there are to be regulations but, like some of the previous speakers, I feel the regulations should be scheduled. I agree circumstances could and would no doubt arise from time to time under which it might be necessary for the Minister to make amending regulations depending on how the regulations work out in practice. There is no reason why the Bill should not provide that the initial set of regulations be part of the Bill itself and the Minister be given power to amend the regulations from time to time in the usual way. By tabling the amendments Members would have an opportunity of examining them. That is one point.
My second point is that, if the provisions regarding regulations are to be of value, a copy of these regulations should be shown to a person taken into custody so that he would know what his rights were. The way the amendment is framed would indicate that this is more in the nature of guidelines to conduct for the Garda. That is very welcome. It is right and proper that there should be guidelines but that is only one side of the coin. The other side of the coin is that the guidelines should be a protection and safeguard to a person deprived of his or her liberty. That would involve a condition precedent whereby a copy of the regulations be produced to any person taken into custody and that person be given a reasonable opportunity of studying those regulations so that he or she would know exactly what his or her position was.
With regard to the amendment of Deputy Dr. Woods in relation to questioning, I am concerned about the implication that is being brought into the debate, both in the wording of the original and in the amendment by Dr. Woods. It becomes implicit almost even on Dr. Woods amendment, which is directed towards alleviating the situation, a person could be detained under section 3 and interrogated or questioned against his will for a period of four hours quite irrespective of his physical condition at the commencement of the four-hour period and quite irrespective of what his mental condition might be or his state of health generally might be. There could be situations in which, because of a person's physical or mental condition, he or she should not be subjected to questioning at all or any comment raised if he or she refuses to be questioned if the physical or mental condition was such as to render such questioning unjust. There should be some provisions written into the regulations. In appropriate cases independent medical opinion or certificate should be required by the custodial garda or whoever is in charge of the particular situation.
The position, as I understand it, under the general law is that a person may not be subjected to interrogation or questioning in any case unless he or she consents to be questioned or interrogated. If that is so that should be made very clear and the impression that questioning can go on for many hours, irrespective of whether or not the person wills it, is in itself quite a fearsome punishment to someone who may well at the end of the day turn out to be not guilty of anything at all. It should be made quite clear both in the eventual wording of the section, as amended, and in the regulations, that a person is not obliged to undergo grilling and interrogation whether it is for eight hours, four hours or half an hour and that they may refuse to undergo that questioning process. I would not like it to go abroad by implication, as even Dr. Woods's amendment would have it, that the four hours at a go are perfectly all right and that as long as you do not exceed the four hours it will be acceptable.
We have gone through almost exactly the same business with which we were dealing this morning and, instead of moving on to a new section, we are taking a new look at the same section.
That is not true.
It is true. We have had exactly the same kind of contributions——
On a point of order, Deputy Taylor's point was not raised this morning.
We have had the same contributions from Deputy O'Dea and Deputy Andrews as they made this morning and the Minister has already replied to the section.
I hope his replies will be better than they were this morning.
I know there is a dearth of Deputies on the Opposition side because of their crisis today——
Please stick to the Bill.
The Minister said that the proposed regulations could not be incorporated in the legislation because persons detained might use those regulations as part of their defence and that they might get off on a technicality. I remember him saying that because he made a personal remark about me at the same time. The Minister should consider incorporating the regulations in the proposed legislation which he told us have been cleared by the Cabinet to deal with an independent complaints tribunal. Surely it would be possible to incorporate those regulations in that legislation? To say that incorporating them in this legislation could give a good defence on the basis of a technicality to somebody prosecuted under this section does not do away with the possibility of introducing these regulations by way of Statute. They could be incorporated in later legislation, presumably to be brought in before the summer recess, to deal with the setting up of the complaints tribunal since the Cabinet have already cleared it.
The Minister said he would like to have a debate on the code and that the technical procedure for doing so would require the putting down of an amendment to a later section. I hope that such an amendment will be put down and that we will get an opportunity to debate the code.
I should like to make further points arising from contributions made by other Deputies. It has been suggested that it would be worth while to let persons who are detained and who wish to make statements write the statements themselves. That is not always a practical proposition in view of the fact that there is a fairly high degree of illiteracy, certainly among those who end up in our prisons. We know, from the very scarce statistics available, that 80 per cent of convictions in the courts arise from confessions. To suggest that persons should write their own statements is not a solution to the problem and it highlights the difficulties which Deputies have in discussing regulations without having those regulations before them and being asked to pass a detention section without knowing precisely what the safeguards are going to be to protect persons who are brought in under that section.
Assuming that we present copies of these regulations to persons who are detained, the same problem of illiteracy arises. The Annual Report on Prisons and Places of Detention 1982 states on page 20 that adult basic education, including literacy teaching, is an area of major development since a very large number of prisoners appear to have received little education before imprisonment. A large proportion of people in our prisons and places of detention most of whom are in prison as a result of making confessions, are not able to read or write.
I hesitate to intervene in this debate because I am so much in favour of passing this Bill. Listening to the views expressed on this and other amendments, one must ask whether this House is passing legislation in order to be helpful to the suspect or to facilitate the criminal. My interest is to see that the Bill is passed as soon as possible to put an end to the appalling lawlessness throughout the country. The sooner the House comes to grips with that aspect of the legislation the better.
I have had experience of people being brought to police stations for questioning, some guilty and others innocent. I want to lay special emphasis on what has been referred to by many Deputies in speaking on this amendment. Many people do not understand legal phraseology and usually when they are brought into a Garda station for questioning, legal phraseology is used. The surroundings of a Garda station are no encouragement to a person of nervous disposition.
When replying to questions asked by the Garda many people say yes when they should say no. One or two cases in my constituency come to mind. They were dealt with by the courts and convictions were handed down. I am absolutely satisfied that those convictions were wrong. Knowing my constituents who were involved, I am quite satisfied that in no circumstances would they tell me an untruth in the secrecy of my house. Perhaps I am living in a fool's paradise. Knowing their background, I do not think I am. A constituent of mine was charged with and convicted of stealing an alarm clock. When he was being questioned he did not know whether he was saying yes or no. He just wanted to get out. In the Garda station he said: "I will say whatever you want me to say, so long as you let me out, and my parents do not learn that I was here".
These people are entitled to the benefit of safeguards under the law. The Minister represents a rural constituency as I do. I want to assure him that, when they are approached by the Garda authorities, numerous people do not answer correctly through no fault of their own but through fear. Quite a number of people cannot make written statements. Members of the House know the appalling situation that exists even with our great standards of education when we read some of the letters our constituents write to us. It is extremely difficult to make out the writing. The good old copperplate writing is gone. It is not taught any more. A biro is used and we no longer have properly shaped letters. Many people find it difficult to describe anything in writing. They ring us up and say: "We do not want to write to you about this. We are not too good at it. We will talk to you about it".
About amendment No. 16.
I am talking about a person who goes into a Garda station to make a statement in writing. Many people cannot do that. Many people cannot answer questions or make written statements. That is a sad commentary, but we must face facts.
I would be very glad if the Minister would bear in mind another problem. It is covered by the amendment we are discussing. The Garda authorities may be pressing for a conviction. The pressure may be on for a full investigation into a particular crime. It may be suggested that the Garda in a station or a sub-district are not sufficiently alert according to Garda headquarters and that they must endeavour to get a conviction. The older members of the Garda force such as chief superintendents, superintendents and inspectors are far more reasonable than some of the young gardaí who want to get a conviction to have that conviction registered in their favour in an effort to obtain promotion in the force at a later date.
The Deputy is veering away from the amendment.
I do not think so.
Just a little.
If you say I am, I accept your ruling. I want to convey to the Minister my anxiety about giving safeguards and protection to the non-intellectual who may be brought into a Garda station and who can convict himself by what he says. We must protect such a citizen, but I hope the House will not spend too much time in an effort to provide safeguards which will enable criminals to drive a coach and four through the regulations. Amendments may be suggested to help the non-intellectuals who are numerous in our community. We may be described as anti-Garda. Deputy Andrews referred to that a few moments ago. Far from it. I admire the integrity of the Garda, but the entire force are not angels. All Members of this House are not angels. Angels are few in organised communities.
I would prefer to see the regulations written into the Bill. We may not always have a conscientious Minister for Justice as we have now. I have every confidence that the Minister will be cautious about making regulations, and that there will be provisions in them to ensure that even the dumbest in our community cannot convict themselves in a Garda station on their own admission, or statement, or evidence. The Minister should consider this amendment carefully. All Ministers for Justice in the past were not angels.
The Minister for Justice must be concerned to safeguard the rights of citizens. I am a great believer in the rights of individuals and citizens. I do not want the strong arm of the State to deprive them of rights and privileges. When statements are being made and when questions are being asked in Garda stations, a solicitor should be present. In the Incorporated Law Society there are men of dedication and integrity. We can boast of the very high standards in the legal profession.
They are not all angels either.
No, indeed. An odd one loses a wing occasionally and finds himself in difficulty. I agree with Deputy Taylor——
I think the Deputy has lost both wings; he has gone in the wrong direction.
I do not follow Deputy Doyle. I should like to ask the Minister to ensure that whatever regulations he makes they will give citizens the full benefit of the doubt. A citizen is never in danger if his legal adviser is sitting beside him when he is making statements in a Garda station.
It could be a woman.
I suppose there are such too.
(Limerick East): I should like to thank Members for their contributions. A lot of the matters referred to this afternoon were dealt with this morning but I shall deal with the new points raised. I am opposed to Deputy Woods's amendment, first because I believe a statutory regulation is a better way of providing the safeguards which it is my intention to provide for people who are detained by the Garda in custody under any circumstances. Secondly, I am opposed to the amendment because certain portions of it are irrelevant in that they are covered already by existing law. That certainly applies to his suggested subsection (10) (a) and, as a consequence of that subsection (10) (c) which becomes irrelevant. The suggested subsection (14) is in direct conflict with section 26, the provision on electronic recording. I do not have any intention of accepting something in an amendment which can be adequately discussed in section 26 when we reach it.
More fundamentally I am opposed to the amendment because the regulations the Deputy is suggesting do not provide sufficient real safeguards. We would need to go beyond that to ensure that the safeguards which are the concern of all Members who have contributed are provided. For example, there is no reference to strip-searching in the Bill and the regulations should cover that. If one looks at Deputy Woods's amendment one will notice that all paragraphs begin with such words as "a person arrested pursuant to this section". The Deputy's amendment proposes to give safeguards to those arrested under the powers in section 3. The regulations will give powers to all people detained in custody. That is more extensive than what Deputy Woods is proposing. People arrested under the Offences Against the State Act will be given safeguards in my proposal. Those brought to a Garda station, charged and detained in the station overnight before appearing before a district justice the following morning will be given safeguards under the regulations. Deputy Woods's amendment is seriously defective because it confines the safeguards solely to those arrested pursuant to section 3 of the Bill.
Deputy De Rossa took me up on the Ó Briain report. I intend to refer to that report when the House is dealing with the section. The Deputy asked me to outline the parts of that report that have been implemented. I should like to refer to a statement issued by Deputy Gerry Collins, when he was Minister for Justice, after the Government of the day had examined the Ó Briain report. That statement, which was issued through the Government Information Services, indicates the sections of the report that were acceptable and those that were not. If necessary I will read that statement to the House but it would be better if I gave the Deputy a copy of it.
What sections have been implemented?
(Limerick East): Some sections were implemented and others deferred. I can provide the Deputy with a copy of the statement for his information. I do not think it is necessary to read the statement verbatim.
I am willing to listen to the statement verbatim but my request was for information on the recommendations of the Ó Briain report that were implemented, not the ones that were acceptable to the former Minister for Justice.
(Limerick East): The statement I referred to deals with those that were accepted for implementation.
Were they implemented?
(Limerick East): Yes. It is a long statement but I will give the Deputy a copy of it.
I am not clear on the point the Minister is making regarding the comments by Deputy Collins on the Ó Briain report.
(Limerick East): Before lunch Deputy De Rossa put a question to me about the recommendations of the Ó Briain report that were implemented.
What is the relevance of Deputy Collins coming into this?
(Limerick East): He was the Minister of the day and he issued this statement of what was acceptable to the Government.
Is the document dated?
(Limerick East): It is not but the Ó Briain report was furnished on 13 April 1978. Subsequent to that the statement was issued after the Government had considered the report.
The point at issue is that some of the 21 recommendations in the Ó Briain report were acceptable to the administration that was in power at the time it was issued. In the course of his contribution this morning the Minister said that a number of them had been implemented and I want the Minister to list the recommendations that have been implemented.
(Limerick East): I can give the Deputy a copy of the statement issued by Deputy Collins and give him an indication — it is not meant to be conclusive — of what has been implemented. For example, Garda regulations were amended as a result of the Ó Briain report. For instance, No. 4527 states that when questioning of a suspect is permissible such questioning should be conducted in a fair and humane manner; not more than four members should be present at any one time and, where possible, the questioning should be confined to two members. It states that persons should not be questioned for a continuous period in excess of four hours without a reasonable break and such a break should be at least one hour if circumstances permit. It also states that questioning between the hours of midnight and 8 a.m. should only be carried out where there are exceptional circumstances, for example, if there is a danger to persons' lives or a danger of serious damage to property. It also states that members in charge of the station should ensure that prisoners are securely confined. There are also regulations about confinement.
I am trying to illustrate to the House that there would be a danger of a person listening to us, somebody in the press gallery or public gallery, thinking that there were no regulations at present guiding the Garda in the treatment of people in custody. There are regulations and they were revised as a result of the Ó Briain report. They incorporate many of the recommendations of that report. These internal Garda regulations, and other regulations which the Minister sees fit to draft, will now be statutory. I propose to bring forward statutory regulations. In making them statutory the section of the amendment which has given Deputy O'Dea so much concern arises — a failure on the part of any member of the Garda Síochána to observe any provision of the regulations should not of itself render that person liable to criminal or civil proceedings or of itself affect the lawfulness of the custody of the detained person or the admissibility in evidence of any statement made by him. This morning I explained what I meant by that. That does not give any immunity to any member of the Garda Síochána. If the member of the Garda Síochána in his behaviour or treatment of a person in custody does anything to suggest that he has committed a criminal offence or has engaged in a civil wrong against the person in custody he will not be given immunity. Existing law will provide for that but the transgression of a regulation will not of itself wrongfoot the garda and make what is not a criminal offence a criminal offence or make what is not a civil wrongdoing a civil wrongdoing.
I took an example from Deputy Woods's amendment and said it was quite acceptable. In his subsection (10) (b) the Deputy proposes that the time of a person's arrest and arrival at a Garda station should be recorded. He also proposes that the offence or offences in respect of which he was being arrested should be recorded. That is quite acceptable and should be in regulations. However, if a garda does not put down the time of arrival of a person at the station it should not make a criminal out of the garda. He would have broken the regulations and should be disciplined for doing so but he should not be liable to a criminal or civil charge. More seriously, if evidence is got during the period of questioning and the question of the inadmissibility of that evidence arises in court, and if there is a clear-cut case against the defendant who is in the dock for murder, the fact that the garda did not fill out a form and put down the time of arrival at the station should not be grounds in itself for releasing that person and letting him go free on a technicality.
No Member suggested it would.
(Limerick East): I am trying to explain the effect of that part of my amendment which has been challenged. People have stated here, and outside, that the safeguards I am providing are no good because of section 6 (c). That is necessary and has to be in any form of regulation or otherwise we will make a cod of the system. It is up to a court to decide if evidence is admissible or not. The courts have done this quite frequently. If the defence presents to the court that such and such a regulation was not complied with the court can decide whether the evidence is admissible. In the case of putting down the time on a form, for example, if nothing hinged on it they would consider the evidence to be admissible. On the other hand, if anything amounted to oppressive treatment of any sort, if the court decided that the breach of regulation was such that it constituted oppressive treatment of the detainee, the evidence would not be admissible. The part I am talking about would not of itself render the garda liable to criminal or civil proceedings and would not of itself constitute oppressive behaviour and consequently make the evidence inadmissible, but it does not provide immunity. If a garda assaults somebody who is in detention there is a law there already to deal with that and of course he would be liable to criminal and/or civil proceedings as a result of that; but the breach of the regulation would not of itself criminalise what is not a crime.
Deputy Doyle talked about the notes being provided for a person. That is a fair point and Deputy Woods referred to it also. As I understand the law as it stands, a person in Garda custody is entitled to make notes, so the issue would be whether it would be required by regulation of the garda to inform such people of that right, and I will consider that in the regulations. Deputy Woods said that there was no experience to draw on. There is experience to draw on in this country because we have the Offences Against the State Act under which people have been detained for quite a long time, 24 hours plus 24 hours. I take the point that the regulations must provide for records to be kept.
This House has already passed an amendment which says that these sections of the Bill will be subject to review after five years or four years — we will decide on Report Stage — when the Bill must be reviewed. When regulations say that records must be kept then you have the basis for valid judgments when the House comes back on the next occasion to review the situation and see what needs to be changed or dropped or amended or added.
Deputy Woods quoted from a report which indicated that it is sufficient for many people to be kept about an hour in custody, and I agree with that. We hope that the period of detention will be very short. We are setting down in this Bill the maxima of 12 hours, six plus six. I understand that that report was of a survey in Britain and that the British at the moment in their House of Commons are looking for detention periods to detain people for up to 96 hours, 48 plus 48 for ordinary crime, not subversive crime. While research in England indicates that the vast majority of people detained there are detained for one hour, one and a half hours, two hours, the authorities and Government there find that it is necessary to go back to Parliament and seek detention powers whereby they can detain people in certain circumstances for up to 96 hours.
You would wonder why they do that.
(Limerick East): I am making the point that the Deputy said that short detention periods were sufficient in Britain and that there is a contradiction between that and what they are doing. It does not devalue the research he has quoted but certainly casts doubt on whether it is the full story.
Does the Minister accept research rather than scientific evidence?
(Limerick East): I have accepted what the Deputy has said. The 96 hours is very valid. We have argued here and outside the House that we are a Common Law country and why can we not do what other Common Law countries are doing, why can we not treat detention laws as they do in other Common Law countries? This morning I was told that the Common Law country which is most closely allied to our legal system is Great Britain, and it is valid for the Minister to point out what they are looking for there.
It is valid for us to do it, but it is not right. We should not compare British laws with our laws.
We are in Committee and the Minister should be allowed to make his case.
We had the Brehon Laws.
(Limerick East): I find it difficult to understand the selective greenery of some Deputies in this House. If I do something that Deputies disagree with, they say that this is outrageous, they do not do that in Britain. If I do something which is done in Britain with which Deputies disagree they say it is outrageous——
On a point of information——
There is no such point and the Deputy should know that.
I appeal to each Deputy to behave maturely and let the Minister make his case.
(Limerick East): Section 26 of the Bill deals with electronic recording. I have an amendment down for that and there will be quite a long discussion on it. It was recommended in the Ó Briain report. There was an acceptance by Deputy Collins in the statement to which I have referred already that feasibility studies would be conducted. No feasibility studies of any sort were conducted and when I had this Bill drafted and before it was published I set up a small committee with an official of my Department, a member of the Garda Síochána and a person with qualifications in electronics who is on the staff of UCD. They have been in Scotland and England and they are looking at video as well as audio recording. It is advisable to await their final report before finalising the system. Field trials will have to be carried out. This is a tricky area. We will have an opportunity to discuss it under the section of the Bill that deals with it.
Deputy David Andrews asked about the status of the regulations and he referred to subsection (3) of the amendment I am proposing. I repeat what I said this morning, that law implemented by ministerial regulation is not inferior law to law implemented by statute. It is not first class law or second class law. It has the same force of law and it will be as binding by regulation as it would be by statute in the House. It is a question of what is appropriate. Precedent and practice are that you do not go into a great amount of detail in primary legislation. Power is given to Ministers to deal with detail in this way. I went beyond that this morning and said under another section of the Bill that regulations will have to be brought before the House and after 21 days will become law unless a negative motion is put down. I have gone beyond that and said, subject to procedural difficulty, I am prepared to put down a positive motion to enable Deputies to discuss the regulations. The powers under subsection (3) will not be implemented until the regulations are implemented because the regulations safeguarding the rights of detainees are essential to the section. The regulations safeguarding the rights of detainees are so essential and Deputies on all sides are so concerned about them that it would be wrong of me to use the powers under the Act to implement the detention section while leaving the regulations until some indefinite date. There is no question of that.
Deputy Monica Barnes spoke about the facilities available at Garda stations. There has been a major building programme in progress for the past couple of years. Three new Garda stations are being constructed at present in Cork, for example, and many other new Garda stations are being built throughout the country. I said earlier in the debate that it would not be a question of using every Garda station in every village. We are talking about using three or four larger stations in each division. These are large, well constructed modern buildings with the necessary facilities. Of course this matter must be kept under constant review because buildings can become run down. I accept the spirit of what Deputy Barnes has said.
Deputy Mervyn Taylor spoke about having a Schedule to the Bill. Perhaps he meant something half way between my position and that of Deputy Woods. I do not know of any precedent whereby regulations can be a Schedule to a Bill. I am not sure it would work. I cannot see any difficulty in the procedure I am outlining. The Bill as originally drafted did not have provisions for these regulations. It was not that the regulations were considered unnecessary but simply that regulations already exist for internal use by the Garda Síochána. On the advice of the House, it was felt that it would be better if these were public and had a statutory base.
Deputy Taylor also made a point about the duration of questioning. I did not quite follow him. It was in reference to the four hours and Deputy Mitchell subsequently made a point arising from it. The Ó Briain report recommended that the longest continuous period of questioning in a detention period should be four hours. He was talking about the 48-hour situation because he was dealing with subversive crime. This recommendation was implemented in the Garda regulations. Regulation 45 (2) (7) states that a person should not be questioned for a continuous period in excess of four hours, without a reasonable break. Such breaks should be at least one hour where circumstances permit. Perhaps the point being made by Deputy Taylor was that the duration of the period of questioning should be by the consent of the detainee or that the very fact of the detention should be by the consent of the detainee in the first instance.
What is the position if a person refuses to be questioned at all?
(Limerick East): The whole basis of section 3 is to overcome the difficulty where people will not co-operate with the Garda, refuse to answer any kind of questions and refuse to go to the Garda station when invited to do so. The power is being explicitly given to arrest people, take them to the station and question them over a period. If they refuse to answer any question——
The power is given to detain but there is no specific power to question. What is the consequence if a person simply says he will not be questioned?
(Limerick East): There is no consequence. It is not necessary to give the Garda power to ask questions. Except what we are proposing in sections 17 and 18, there is no obligation on the detainee to answer questions.
Should not that be made clear?
(Limerick East): It is clear. Deputy Mitchell talked about a person getting off on a technicality. The question of the technicality would arise under the regulations in the same way as under the Bill since the regulations have the force of statute. We should not tie the court in either a statutory regulation or in the Bill into a situation where they are forced against their better judgment because of a technicality to decide that a person has been treated oppressively, that evidence is not admissible and consequently a person walks free where it is quite clear that he is guilty of a serious offence.
I thank Deputy Oliver Flanagan for his contribution and support for the Bill. The safeguards I intend to bring in by regulation will go a long way to meet the difficulties which he has outlined, going from particular instances of people in his own constituency to the general area concerning people who are illiterate and so on.
A Deputy made a point about handing a copy of the regulations to a person being detained. It is envisaged that the regulations should provide for a form of notice to be given to the person setting out his rights. Perhaps they could be displayed on the wall.
That is what I had in mind.
(Limerick East): I do not think handing a person a copy of the existing Garda regulations would be of help but I do not see any difficulty in meeting the point raised in the way I have indicated.
I am asking Deputy Woods and his party not to press their amendment for the reasons I have outlined, with which they may or may not agree. The safeguards being proposed by Deputy Woods apply only to people being detained under this Bill and do not apply to people being detained under the Offences Against the State Act or people in custody after being charged waiting to be taken to court. That is not far enough. I would have to reject the dual approach. I do not think it is appropriate to legislate by going a bit of the road here and holding back positions on what we might do further down the line. The regulations should be the main corpus of the safeguards and should only be changed by a Minister if they are seen not to be working in practice, preventing the course of justice from proceeding and interfering with the common good or alternatively if they are not real safeguards. The flexibility given to a Minister on regulations is better. I am asking the House to accept my amendment and I am opposed to the amendment put forward by Deputy Woods.
I will accept the Minister's amendment but I believe the dual approach is the right one. The Minister has specifically stated that statutory regulations are better. As far as the House is concerned, statutory regulations are not better. Most people here have considerable concern about section 3. It does not matter what they are doing in Britain or Belgium or anywhere else. We want to see appropriate safeguards in the section.
The Minister rightly pointed out that my amendment referred specifically to the section. This is the section which brings in the new powers of arrest on suspicion, something which is quite foreign to us. We are naturally concerned about it. The safeguards we are proposing are related to the section. Of course we will welcome the introduction by the Minister of statutory regulations enshrining the internal code of practice, which is not now available to the public.
(Limerick East): On a point of order, the amendment which I am introducing says that the Minister shall make regulations providing for the treatment of persons in custody.
That is not a point of order.
(Limerick East): Of course, it is the point.
It is not a point of order.
The fact is that the present Garda regulations are not available to us and that is a fact. The Minister can check it with his officials. One cannot get those regulations and we in this House do not want that uisce faoi thalamh situation. The Minister is saying that some regulations had been brought in since the Ó Briain Report. These may or may not be complied with, we do not know. I accept the Minister's statement that, by and large, they are being applied. We are bringing in special powers, specific regulations which will relate directly to section 3 and in my amendments I have tried to get the necessary safeguards accepted. I accept that the Minister means to bring in plans, but quite honestly and sincerely these safeguards should be present in this Bill, irrespective of what happens subsequently or in what way the Minister broadens them to cover the Offences Against the State Act or other legislation.
We are now about to pass a section which basically is repugnant to most of us. We are prepared to accept the section because basically we believe that the majority of the Garda force are men of integrity who have served us well and will continue to do so. However, as Members on the other side of the House have pointed out, there are Garda officers who will abuse the situation. Any superintendent or chief superintendent will tell you that at the moment in his own area he has problems with specific people and will have to be vigilant about them. It is to be hoped that he will be. The fact that the Minister has not the regulations available at the moment is a separate question. They should have been ready with the Bill and be included in the Bill in so far as they are relevant — particularly to this section.
In many of the areas — for example, the Complaints Commission — the Minister has suggested that we pass the Bill and he can be relied upon to bring in the regulations afterwards. I accept his sincerity in that, but that is not the way it should be. The homework should be done before he comes into the House. The regulations regarding the Complaints Commission should be examined at the same time as the major steps which are being taken today. With regard to the regulations, the Minister's party will support him in the House. His Whip will bring in both the Labour Party and Fine Gael to support him in defeating my amendments, so I must rely on the Minister to bring in the regulations in the way in which he has promised — that they will be comprehensive and will meet the obvious requirements. I am quite prepared to withdraw subsection (14) of the amendment which says:
Where a person detained pursuant to this section is questioned for the purpose of the investigation the entire of the questioning shall be recorded by electronic or other means.
on the grounds that the Minister is carrying out feasibility studies and will deal with that matter in due course. However, the other measures should be included in the Bill.
The Minister has said that there will be other provisions in relation to the section on strip searching and so forth which might require appropriate safeguards. If the Minister is providing these safeguards, we shall be quite happy with that.
I am expressing the views of many Deputies when I say that it is not so much that they should be an integral part of the Bill, and I suggested earlier a schedule to the Bill. What motivated other Deputies and myself was that we should know at this point what those regulations should be. I do not mind their being dealt with by way of statutory regulations, on reflection, but we would prefer to know the content of the regulations. The procedure according to section 29 of the Bill for laying down regulations before the House and the negative resolution and so forth are not really satisfactory so far as the Members of the House are concerned. Perhaps in theory it is, but the practicality is that the voluminous measure of regulations put forward, the procedure for dealing with them being to leave them in the Library, results in the overwhelming bulk of the Deputies not knowing what regulations are brought forward and even if they did——
On a point of order, I do not wish to interrupt the Deputy, but I am happy in the belief that this problem was resolved this morning. I say this to assist Deputy Taylor. The Minister has already acknowledged this problem, which he says will be dealt with on Report Stage.
The Minister is doing something by way of regulations and I do not think that I can stop Deputy Taylor.
I do not wish to stop the Deputy.
As a matter of interest, there is not even a table in the Library on which these regulations are laid.
Quite so. But the procedure is that even if a Member is aware of the regulations, the likelihood of his being in a position to avail of the normal procedure laid down in section 29 of the Bill is remote, at best. I certainly cannot recall any occasion where a resolution annulling a proposed resolution was ever brought before this House. When one considers the massive volume of regulations brought into law, one realises why Ministers prefer this form of regulation to legislation which is obviously seen and debated on the floor of this House.
First of all, I want to express my appreciation to the Minister for having indicated that he would envisage a framed, extracted, simplified form of the regulations which would be shown to a detainee. That would be very welcome. I would suggest that perhaps Item 1 on that information data be an indication to that person that he is not obliged to answer questions, or to respond to questions, which is the position as the Minister has clarified it.
I come to the key question which was highlighted in the Minister's last response — the question of the answerability or amenability of a Garda officer for failing to comply with the statutory regulation made under the Minister's amending section. I can well appreciate that where a garda has, as it were, his own internal rules of conduct which, as the Minister indicated, is the present position, in the event of a breach of one of those Garda internal rules of conduct it would be acceptable enough that the method of dealing with such a breach would be a Garda inquiry — an internal disciplinary matter within the Garda force. That would be fair, reasonable and acceptable for that kind of regulation, but what is proposed here is a move into a different arena altogether. We are talking here about bringing in statutory regulations and as the Minister himself rightly pointed out they are as binding as a statute of the Oireachtas. What will be the position if we are going to have a measure of law as binding as a statute of the Oireachtas and all it amounts to in effect is no more than a guideline to the members of the Garda Síochána, for the breach of which there is no sanction? It consigns those statutory regulations with the full force of law to being no better and on a par with an internal Garda directive or arrangement. Are we to have the situation where the members of the Garda Síochána are to be in that privileged position that they will have the luxury of regarding instruments of law as no more than a guideline for them as distinct from everybody else who, when they breach a statutory regulation of this House, find themselves in a criminal position? It might not be a criminal position ending in imprisonment. It could be a matter of a fine. There is a statutory regulation for shopkeepers regarding display of prices. There is a statutory regulation regarding filling up forms to tax one's car and to insure one's car. There are a million regulations that members of the public have to comply with. It is only a matter of filling up a form but if a member of the public does not do that he is liable to be charged on summons and brought into the District Court and may be fined £5, £100 or some other sum on a repeated offence and so on. That is the position so far as a member of the public is concerned.
The Minister says that if the garda does not fill in the form you would not want to make that a criminal situation. Why should his position be any different from that which applies to any other member of the public who fails to fill in a form and fails to carry out the terms of a lawful statutory instrument? The same law which applies to a member of the public should apply to a garda when he breaches a statutory instrument of law which, as the Minister quite rightly said, is as binding as a statute. If those regulations are laid down as a statutory instrument of this House and if they are breached, there is criminality — it may be slight depending on what it was — on the part of the member of the Garda force. In my view it would be a dangerous precedent to introduce a situation where instruments of law, as passed by this House, could be relegated to have as their sole sanction an internal Garda disciplinary procedure.
We have been talking about this amendment for some time and the Minister continues to show reluctance to accept it or to see the sense in it. His response to our proposals is to make the regulations. Those regulations state specifically that a breach of them may make evidence inadmissible but of itself it will not render evidence inadmissible. The Minister has explained his approach. I listened carefully to it and I cannot make much sense out of it. I fully agree with the Minister that he needs to be concerned that a breach of a very minor regulation, such as failure to fill in a form, will not render evidence inadmissible which will allow a person to escape conviction for a very serious offence when there is a clear case. His solution is to leave it up to the courts to decide in each individual case. The courts may decide that a breach of a very minor regulation will not be sufficient to prevent a person from being convicted when otherwise there is a clear-cut case in a serious offence. Breach of a much more fundamental regulation, such as regulations leading to questioning, will presumably render the evidence inadmissible depending on what the court decides. While breach of one minor regulation might not render the evidence inadmissible in a case like this, breach of a number of minor regulations may render the evidence inadmissible.
Why did the Minister not direct his Department officials, if that is his reason for leaving the matter to the courts, to decide what regulations can be broken without making evidence inadmissible and what regulations cannot? Surely it is the Minister's function to decide that instead of leaving the matter to the courts? The fact that the fundamental decision of this sort will be left to the courts to decide in each individual case is typical of the indecisive approach of the Government to the many problems that have confronted them for the past 18 months: leave it to somebody else, set up a committee and in this case, put it over on the courts. I am sure the Minister, being an intelligent man, understands the sense of our amendment and the spirit in which it is put forward. I cannot see why he cannot accept it.
I would like to say a few things about Deputy Taylor's contribution and then something about what Deputy Woods previously said. I do not believe Deputy Taylor would be correct if he was implying or suggesting to the House that all breaches of a rule laid down in a statutory instrument or of a direction given in a statutory instrument such as a set of regulations brought a criminal sanction with them. That is not so. There are a massive number of things which statutory regulations require to be done and which they rely on the administration to do. If they are not done they may or may not invalidate the end result of what the administration are trying to achieve but they do not necessarily, except in a very small minority of cases, carry a criminal responsibility with them. I would not fault the Minister's subsection for that reason.
I do not read that subsection as conferring on a member of the Garda Síochána who neglects some provision of the Minister's regulation a criminal or civil immunity in respect of his entire behaviour during the interrogation. That could not be so and if I thought it was I would be very much against it. If a garda, who carries out or participates in an interrogation, assaults the person who is being interrogated, which is a civil wrong and a crime, I presume he would be just as much liable under these regulations as he was before. It is merely a breach of some of the Minister's regulations, if there is nothing else in the picture like a failure to enter up something in a book or a failure to observe some time limit or some formality, which does not go to the root of the prisoner's rights, so to speak. That is something which I could swallow. I do not really see that every small quite accidental neglect or even a deliberate neglect of some rule ought necessarily to bring a civil or criminal responsibility with it. If a garda breaks the Minister's regulations and also commits a crime or a civil wrong the regulations do not purport to give him immunity and could not do so, in my view.
If I have not misunderstood Deputy Taylor and another Deputy, I think they have exaggerated the import of subsection (3). I hope the Minister is trying to follow the kind of line the courts have laid down recently which tends towards the statement that not all breaches of strict legality will infect the custody itself with illegality. Not all breaches of rules are so far-reaching or so fundamental as to vitiate the fact of the custody itself and render it illegal and render everything that flows from it illegal, such as confessions obtained during its course. I presume that is all the Minister is trying to express, and if I am right in that I do not think he is doing anything that changes the law from what it is today.
The Minister is quite right in saying to the House that regulations are as much the law of the land as statute itself. I would draw the attention of the House to the fact that many areas of law — not perhaps criminal law but areas that are in a general sense ones of police and administrative control — are contained in regulations. For instance, there are the prison regulations: an important case was conducted recently, The State (Richardson) v. Governor of Mountjoy, where the applicant for habeas corpus was a lady who complained of the revolting sanitary conditions that existed then in Mountjoy and which I hope have since been remedied. The case proceeded largely on the basis of breaches or neglect of the prison regulations which she was able to prove. That was a case where the rules were not contained in statute but in subordinate legislation but the person concerned was just as entitled to rely on that subordinate legislation and travelled just as far on it as if it had been an Act. The same situation applies to aliens. The entire nuts and bolts of control of aliens depend on the aliens regulations. They are authorised by the Aliens Act but the small print of the rules are contained not in the Act but in the regulations. As everyone knows, the bread and butter of planning law is contained in planning regulations which are made under virtue of the parent Act.
What interests me is not so much the idea that the Minister is going to make regulations rather than append a Schedule to the Act but rather his suggestion that the regulation should be made by positive resolution of the House rather than being subject merely to annulment by negative resolution. That is a handsome offer by the Minister and I am happy to settle for that, though I do not know if the Opposition will settle for it. I presume it means the regulations will not come into force until they are made by this House. If I misunderstood that or if the Minister has some other plan in mind, I am sure he will correct me. If I am right it means there need not be any apprehension about the regulations until they are brought forward for discussion here as in the case of every other provision in the Bill.
The power to make regulations which the Bill contains presumably contains power to make amending regulations. When in Opposition I remember making points similar to those made by Deputy Woods and Deputy O'Dea, namely, that while we knew Deputy O'Malley, or whoever was Minister for Justice, did not intend to behave like a tyrant or a savage, we could not be sure about all Ministers who might come after him. I made the point then that we did not like putting a general power in the hands of the Minister that a successor might abuse. The reason I mention that now is because the power to make regulations of this kind presumably carries with it the power to make altered regulations. If the Minister intends to change this amendment on Report Stage in such a way as to achieve the regulations by positive resolution, I should like him, if possible, to put in that any altered or amended regulations should also be subject to the positive resolution of the House, and not merely to a negative resolution which does not affect retrospectively anything done under cover of the regulations in the interval between making them and their hypothetical annulment. That leaves a wide gap for abuse; but by adopting the positive resolution the Minister will avoid that. However, I should like to be assured that that positive resolution will also be applicable to any altered or amended regulations hereafter.
The Minister is quite right to say that there is not any first-class or second-class law. That is not the argument that has been made. The argument that has been made is with regard to the desirability of having the regulations made by ministerial order or by statute. There is no question of first-class or second-class law. Both have the power of statute. The question is whether the House should seek the right in this instance to ensure that the regulations are passed.
The Minister referred to legislation in the United Kingdom with regard to the 96 hours. To put the record straight, the Police and Criminal Evidence Bill in clause 39 empowers a magistrate's court to issue a warrant authorising the detention of a person for up to 96 hours without charge from the time the detention began if this is necessary for the investigation of a serious, arrestable offence.
I was not very satisfied with the Minister's reply to a question I raised on amendment No. 24. If there is a serious breach of the regulations it is up to the court to decide if the evidence is admissible. The Minister has indicated that strip-searching will be included in the regulations. If a person is strip-searched in detention in the first six hours and if he is not brought to court but is let off, what effect will that have on the garda who broke the regulation? Will there be a criminal sanction against him? If the Garda authorities deal with the problem, will there be any scheduled list of penalties that will be enforced by them? The public want an answer to that question. If a garda acts outside the law and breaches the regulations he must be punished severely.
(Limerick East): I want to apologise to Deputy Doyle because I omitted to answer his question. There is a scale of punishments. Deputy Kelly dealt with the question of regulations and the situation is as he stated. There are ministerial regulations that do not involve civil or criminal responsibility. The subsection being discussed now does not confer any immunity on a member of the Garda Síochána. For example, if a garda assaults someone he would be liable for both criminal and civil proceedings with no immunity. Deputy Taylor raised the situation of a shopkeeper who is obliged under penalty of a fine in the District Court to comply with certain regulations regarding pricing and he asked why should the Garda be different. They are different for this reason: they are one of the three disciplined forces in this country and they have internal regulations regarding their discipline which are quite severe. A garda who is in breach of a regulation could be disciplined in anything from a caution to a reprimand, to a reduction in rank, a reduction in pay or dismissal——
Or promotion.
(Limerick East): That is a snide comment. I do not think Deputy Skelly should put it on the record of this House when we are talking about the Garda Síochána.
The Deputy should withdraw the remark.
Certainly.
Would the Minister say whether a serious breach of the regulations constitutes grounds for dismissal?
(Limerick East): Yes, of course. Let me take the specific example which Deputy J. Doyle has raised. If a male member of the Garda Síochána, in breach of existing regulations or in breach of the proposed statutory regulations that I will be bringing in, strip-searches a woman who is in detention, then he would be liable not only for dismissal from within the Garda Síochána but he would be liable for civil proceedings on the grounds of a gross invasion of privacy and a lot of other consequential things. I think also he would leave himself open to a criminal charge of indecent assault, if not actual assault. Therefore, there would be no immunity given in that case and the full rigour of the criminal and civil law and the disciplinary proceedings of the Garda Síochána would apply. In my opinion that would be a clear-cut example of where somebody would be dismissed from the force.
While I respect the views of the Minister and Deputy Kelly, I disagree with them. If the Minister must have his darned regulations then he might clarify the position in paragraph 6 (3) of his amendment No. 24 which appears to be somewhat ambiguous. The Minister and I, and probably other lawyer Deputies and others who are conversant with the law, know there is no immunity for gardaí — in the very unlikely event of an individual being assaulted in custody, false imprisonment and so on. We know that the Garda themselves can be open to these types of sanctions. I accept what the Minister says in that regard but the section itself is most unclear. Perhaps it would be helpful to the Minister's case that that be clarified by way of an additional amendment, perhaps something to the effect that this provides no immunity from ordinary sanction or whatever — I do not know how the parliamentary draftsman would do it.
I do not think the regulations should be independent of the Bill. While I agree that the regulations themselves have the same force as statutory instruments and they are not conferred with second-class legal citizenship, nevertheless I believe we should see the whites of their eyes and the only way that can be done is by having them enshrined in the Bill itself. If we must have the regulations then let us have them by way of an additional Schedule to the Bill. I accept that the Minister has said there is no precedent for that, but is it not time we created a precedent? Let us be a little bit daring. I would not wish to diminish the purpose of the provisions of the Bill but I must again express my personal reservations about the propriety of the Bill and section 3 in particular.
I might revert to Deputy Woods's amendment which I believe is reasonable. It may be somewhat bureaucratic but then the Bill itself is riddled with the need to issue documents for this, that and the other thing and I have no doubt but that confusion upon confusion will reign. I have no doubt but that the lawyers will have a field day in that regard and that once more the taxpayer will be called on to pay for the legal aid demanded nowadays by the citizen. That is why I believe it is not unreasonable to suggest that Deputy Woods's amendment be incorporated in the Bill with the exception of subsection (14) of that amendment which he endeavoured to have withdrawn.
I have serious doubts about the recording of matters by electronic equipment or other means which could be fairly intimidating on the ordinary citizen. However, hopefully the ordinary citizen will not become too involved in the implementation of the provisions of this Bill. Hopefully the provisions will deal rather with the criminal element in our society.
I believe that the proposals in Deputy Woods's amendment are reasonable, are up front and should become part of the corpus of the Bill. Indeed there is a huge query mark over the generality of the Bill. I would hope Deputy Woods would push his amendment to a division, because it is most important that the democratic process be seen to be working publicly. I will be requesting him as spokesman for our party to push his proposals to a division.
I have not spoken in this debate since this morning, so I hope Deputy Gay Mitchell will not mind.
I might refer to the Minister's earlier attack on a so-called claim existing inside and outside the House that we should ape other Common Law countries and look at what is going on in Britain and other European countries. Over the past few months I have read practically every article, as I am sure has the Minister and other Members, in newspapers, magazines or whatever, any information which was available, in relation to this unfortunate Bill. Nowhere did I see or witness that claim that he contended existed.
In relation to Deputy Woods's amendment, it must be honestly said that he has tried to provide safeguards here. Perhaps they are not as wide-ranging or do not go sufficiently far in the Minister's view, but at least they are an attempt to provide safeguards, which is one of the big worries people have about this Bill. The Minister can duck, weave and dodge all he likes but the fact of the matter is that he has nothing on the table — there is no alternative on the table. There are merely promised regulations. This point has been reiterated many times, with the Minister reverting to the regulations that will come. The suggestion has been made very clearly that the regulations should be here now, that at least we should know what they are. In response to Deputy De Rossa's queries earlier as to what regulations there were in force, the Minister said that some of the Ó Briain regulations were in force, but in enumerating them he got only to one and a half.
I should like to refer now to what former Minister G. Collins actually did when the Ó Briain report came out in 1978. There was a further report written, as a result of that one, in which it was stated——
An Leas-Cheann Chomhairle
Has the Deputy got the date of that report?
I have the same problem the Minister had, in that it came out in April 1978. This was a booklet on Crime and Punishment written at that time, edited by Seán MacBride, Part II, under the heading "Police Custody and Interrogation" by Kevin J. White, Chairman, Irish Amnesty International, where it was said:
Amnesty welcomed the report and found its recommendations to be ‘constructive proposals for effective safeguards'. Minister for Justice Collins appeared equally warm towards them. The Government, he announced, had decided to accept the proposals. But he added a vital sub-clause: the acceptance was subject to a number of ‘reservations and exceptions’.
And he went on to list at considerable length a litany of reservations and exceptions. Recommendations were rejected as ‘unacceptable', ‘impracticable', ‘requiring further examination' and needing ‘careful consideration'. After all the reservations were added up, the report had been emasculated. All the significant and potentially effective proposals were smothered in verbal obfuscation.
Deputy Woods and others have referred to regulations, but we do not know what those regulations are. We are told there are regulations already in existence. Yet there is nothing for us to go by. We are about to radically overhaul the criminal law. We are about to implement proposals that will affect the whole community. We have no safeguards in the Bill and we have no proposal on the table and everything would suggest they should be at the moment in the Attorney General's Department and with them near to surfacing——
(Limerick East): On a point of order. I said the complaints procedure was being drafted in the Attorney General’s Office.
Then the point I was going to make would not be relevant. I thought they were that near and surfacing and we could perhaps wait for them but it is asking a lot of this House to accept this section and the Minister's amendment No. 24 on which I have not heard any legal person who commented approving of the Bill. This may be asking too much of this House. Deputy Woods has tried. I thought his amendment was very constructive. He came up with suitable safeguards. Deputy Andrews and Deputy O'Dea expressed dissatisfaction with section 6 of the Minister's amendment. I think it is a bit unfair. Deputy Andrews mentioned the point that he would like safeguards incorporated in the body of the Bill for the same reason I and many other people would like them to be incorporated, people inside and outside this House.
We are entrusted with the job of ensuring the protection and safety of innocent members of the community and, while I am not suggesting we are being hood-winked or anything like that, I think it is fair to say, as others have said, that this is just not yet ready and we are not in a position to comply with the request to pass this Bill.
Some of the suggestions Deputy Woods made in amendment No. 16 are very welcome and if they can be added to or expanded in any way, if they do not go far enough, we should consider that for the Report Stage and when the Minister comes back we could have those incorporated. I definitely find it very difficult to understand the constant resistance to bringing forward these regulations, bringing all in at the same time as the Bill, when there is such consternation within certain groups in the community and on the part of responsible people both inside and outside this House. We are all concerned about this legislation and it is just not satisfactorily explainable.
Clauses (1) to (4) of this amendment are very worrying. Perhaps my understanding of them is just not deep enough and I have to go on other people's opinions and on what I read and comment made. Section 6 consists of the most incredible statement that the failure of the Garda Síochána to observe any provision of the regulations shall not of itself render that person liable to any criminal proceedings. That does not bother me, the criminal proceedings, because I do not think there is very much likelihood of a person, who is in custody and has undergone interrogation, who is on his own and unable to communicate with anyone, being able to prove anything anyhow, certainly to the extent of being able to take things as a threat in a criminal or civil proceedings against someone who would abuse that provision.
What concerns me very much is the inadmissibility in evidence of any statement made. It will not be effective and I just do not accept the reasons given by the Minister. There are other disciplines. There is an enormous body of people who have to observe regulations, fill in forms and abide by certain rules and, if they do not do so, they are sometimes penalised. That is happening every day and, if there is a serious case being brought or a serious charge being made against someone, I do not see why we could not have someone responsible to fill in a form properly and do whatever is necessary. If there are problems in that area I suggest they could be corrected. There are in excess of 200,000 people on the dole at the moment and many of them are well qualified to do simple jobs like that. It just does not wash. Given the incidence of crime, the number of gardaí, it will not wash that the simple procedures outlined here cannot be safeguarded. The person likely to suffer will be the youthful person rather than the hardened criminal.
Under amendment No. 16, paragraphs (a), (b) and (c), the Minister informed us these are already in effect and he referred to the case of Christy versus Ó Loinsigh. That is good and the only two things that I would have anything to say about is times —“without delay”— and also in section 10 (c) the statement in writing of offences “as soon as possible”. I do not think the safeguards are tight enough because they can be so easily abused. “As soon as possible” could be hours. “Without delay” might be a bit more restricted than that. It is not the same as immediately and I do not see why a certain time limit could not be imposed, half an hour or an hour, because we are talking about the Garda and when one has had the experience of having to go, for example, to a hospital, there is inevitable delay. We are not very efficient people and I just want to ensure people will bend over backwards to see that someone is not put out when he or she is detained and so I would like, therefore, the safeguards to be more explicit.
Also in section 10 (3) the Minister said that there was a guardian mentioned. There is a difference here between the Minister and Deputy Woods in that the guardian in the agreed report is a member of the force who is not connected with the investigation. That same criterion should apply in that amendment. The Minister said that subsection 10 (d) was acceptable and could be tightened up. There is only one problem running through this for the person in custody. He cannot verify that a member in charge will enter details in the records and that proper procedures will be followed because he or she will be isolated in an oppressive atmosphere and cannot tell whether instructions are carried out at a certain time. He may not have a watch if he has been stripped and searched and could lose track of time. It all points to the necessity for having another person present during questioning, either a solicitor or an independent witness. The Ó Briain report mentioned a roster of solicitors who would be available for that purpose and perhaps that scheme could be adopted. Deputy Woods's admirable attempt to come up with safeguards is all that another worried member, Deputy Andrews, and I have to go on. Deputy Andrews said he would like to have it incorporated in the body of the Bill. Unless and until the vague regulations which the Minister is talking about are incorporated in the Bill we will not be satisfied.
I should also like to repeat and emphasise the point which Deputy De Rossa made that if this Bill becomes law and we are promised that the regulations will also be introduced, there will be pressure and lobbying from the Garda to water down — Deputy De Rossa did not use that phrase — those regulations. I have no doubt that will happen and that there will be strong pressure on the Government to do this. I also venture to suggest that the reason this Bill is in its present form and that most of those extra powers are included is because of the successful pressure over the last couple of years by the Garda Síochána in lobbying on this matter. We are not being told the reason for keeping the regulations separate from the Bill. Public opinion has only recently awakened to the dangers of the Bill but it is now very concerned.
In amendment No. 16 subsection (11) four hours' maximum questioning was mentioned and we referred to the Ó Briain report. The Minister said that while four hours might be oppressive treatment for one person, that might not be necessarily so in the case of another person. I accept that, because a hardened criminal could withstand four hours' questioning. However, in order to break down the criminal the innocent person has to suffer. We are saying that in order to break down a criminal, we must have a minimum of four hours' questioning. Statistics show that 90 per cent of the people arrested under the Offences Against the State Act were not charged. Therefore, innocent people will suffer because of the criminal. The balance of the Bill is in favour of the criminal.
The question of the detainee getting a copy of the documents does not seem to be thought out well enough but it is indicative of the way we should be going because it makes a very good shot at getting many safeguards in, and God knows, the Bill needs safeguards. I did not enjoy the jokes about waking up people when they are asleep every hour because those of us who have visited these places know that it is impossible to sleep. I am reminded of the graffiti on the walls in these places which says —"it is no use standing on the seat, the crabs in here can jump ten feet". There are cockroaches, bugs and noise in a police station. There is also terror, fear and tiredness. To make a joke about rousing someone from sleep shows how far removed we are from reality and how little we understand and know what many deprived people have to go through.
Subsection (13) (a) says that a detainee is entitled to make and retain notes in writing. I hope he will be allowed to keep such notes but I do not know what safeguards he will have against such notes being used against him.
Dr. Woods' amendment has helped the Bill in that he has suggestions for safeguards but, as we were asked to discuss section 24 at the same time, I cannot be as reassured about amendment No. 24 because this amendment has caused consternation to the opponents of some sections of the Bill.
The proposed new section 6 says that the introduction of regulations providing for the treatment of those in custody are at the same time providing that any breach of those regulations will not affect the lawfulness of the custody of the detained person.
There is no mention of the judges rules. I do not know why they are ignored. Possibly it is because it is envisaged that the regulations will be brought in. We are ignoring the judges' rules which are administrative directions and which are observed at the moment. If they are breached it is at the discretion of the judge whether such a breach affects the lawfulness or otherwise of the detention. That puts us in another very serious situation. These sections ignore the judges' rules. What happens between the time the Bill becomes law and the time the regulations are made? I know section 3 will not come into operation until the regulations are operative. So we are back to square one.
I do not know whether that situation conflicts with the judges' rules. I understand that if we put these safeguards in the Bill they are subject to interpretation and perhaps changes as a result of interpretations in the courts, and that a statutory instrument would be more flexible. I cannot get away from the conviction that, if there is to be a statutory instrument, the Minister should bring it before the House before we are asked to decide on this Bill. All the uncertainties could be removed.
The Minister mentioned that the regulations must provide real safeguards. That is fine, but we have not got real safeguards in the Bill. We have no indication of what those safeguards will be and we have no way of assessing them. All we have on the table is amendment No. 16. I would like to hear a comment on why the judges' rules are ignored, and on my point about the regulations and the point that if we have not got real safeguards we have nothing. Perhaps these safeguards in the amendment do not go far enough, but they could be adjusted between now the Report Stage. These two amendments suggest to me that the Bill should be suspended until the regulations are brought forward. If they are not ready the section should not come into operation.
It was about 11.45 a.m. when I last spoke on these two amendments. They are serious amendments.
Things have gone further adrift since 11.45 a.m.
This section has given rise to great concern. We seem to be going around in circles. Two views are being expressed. The first is the view I originally expressed to the effect that, on balance, the Minister's proposal that the safeguards to be provided by way of regulation was desirable, provided the regulations come before the House and be approved by the House before they become operative, and provided the detention sections of the Bill did not come into operation until the House had adopted and approved of an appropriate code of conduct to be provided in the regulations.
Shortly after I spoke the Minister expressed the view that he was prepared to bring in an amendment on Report Stage to provide that the regulations would require a debate in the House and the formal approval of the House and any amendments to such regulations as may be tabled by the Minister or his successors would require a similar approval. Deputy Andrews, Deputy Skelly, Deputy Mitchell, Deputy Woods and Deputy O'Dea expressed concern about the detention provisions of the Bill. I am concerned about them on the basis that, if we are to have detention provisions, the job of this House is to ensure that all relevant safeguards are there, and that the detention provisions do not become operative until the safeguards are provided.
In adopting the approach he adopted this morning and which he reiterated this afternoon, the Minister has given us that assurance. It is fair to acknowledge that to the Minister. I also share the view that many of the worries expressed by Deputies would not have been expressed, and we would not have spent so long in debating these two amendments, if at least a draft of the proposed code of conduct had been made available. It has not been made available. It seems to me that what the Minister has agreed to in the House allays the worries which have been expressed. I do not understand the point that, unless all these safeguards are included in a statutory provision, there is something not quite right about it. The regulations will have the same force of law as a statute.
I will not delay the House much longer. We seem to be going over and over it again. I accept the view that the amendment proposed by Deputy Woods clearly lists some of the aspects which should be dealt with in a code of conduct, but he left out a great deal that should be dealt with. Whereas I fully accept the intention behind Deputy Woods' amendment, No. 16, in my view it is inadequate. If that were to be the total content of the code of conduct and the safeguards, I would have even greater misgivings about the detention section.
We did not suggest that.
The practical and sensible way to deal with this is to provide a uniform code of conduct which clearly lays down what the safeguards are. If the detention provisions cannot come into force until such time as we have that code of conduct, and if that code of conduct must be effectively legislated through the House by an approval formula such as I have suggested and the Minister has accepted, it seems that this House will still exercise all the controls necessary to ensure that the safeguards are there.
Deputy Skelly expressed the view that the code of conduct might be watered down, or that it might not fully reflect the protection which in his view should be made available. If that happens, we will have an opportunity to express that view in the House and to propose amendments to that code of conduct to the Minister.
Detention will be on the Statute Book.
Detention will not yet have come into force and that is the point. If the Minister is willing to accept the view and expressly state to the House that the detention provision will not be brought into force without the code of conduct being enacted also that is the safeguard requirement being met fully on the basis of the worries being expressed by Members.
I do not wish to illustrate some of the inadequacies and areas not dealt with in Deputy Wood's amendment that I believe should be dealt with in the code of conduct as I did this morning but I should like to make a point that was not referred to in amendment No. 16 which I believe will be included in the code of conduct. In the context of all the records the Garda will have to keep, and in the context of those records being kept pursuant to Deputy Wood's amendment, or a code of conduct provided by way of regulation, at the end of the day I would hope the code of conduct will provide that the person being detained will have made available to them a copy of the record of what took place during their period of detention. If they have a complaint to make or if regulations have not been properly followed they should have a copy of that record made available to them. A requirement that a copy of the record be made available to the person detained will place a particular onus on the Garda to ensure that they comply with the code of conduct. Deputy Woods did not deal with that in his amendment. There was criticism earlier of those who looked at what was happening in the United Kingdom or elsewhere but in the parliament in London they are making with similar legislation and are making provision for the making available of the record to the person detained.
It seems to me that we have all said everything that can be said about this section. I welcome the fact that the Minister by his agreement to accept proposals made earlier this morning has acknowledged the genuine worries of Members and my view has adequately met them. He has provided a mechanism whereby the House can specifically ensure that all the safeguards we wish to see operational in the context of persons detained will come into being before the detention provisions are brought into force.
I suggest to the House that this amendment has been adequately debated and that I should put the question. Is that agreed?
I do not agree entirely. Deputy Shatter in his summing up saw two positions in regard to this but there is a third one, that we are being asked to go through section 3 giving wide-ranging powers of detention——
We all have an opportunity to debate the section when we have cleared the amendments.
I do not intend debating section 3. In regard to the amendment we are being asked to vote through the Minister's amendment which seeks to introduce regulations of some type. The Minister has outlined the type of regulations verbally.
That has been said again and again.
It needs to be repeated.
Repetition is not in order.
Repetition is the order of study.
We do not have any guarantee that, if the Minister introduced his regulations this evening, many of the Members present who are saying they want these powers of detention would not change their minds when they see them because they may be inadequate. When the Minister brings in the regulations the power to detain will be on the Statute Book. As far as I am concerned that is the key point in regard to these amendments.
That is the point I intended making. I believe I was the first Member to raise my concern about this. I am not impugning the Minister's integrity one way or the other but the House is dealing with a very unusual piece of legislation. It goes to the very basis of the whole philosophy of civil rights and the approach by the Government and the law enforcement agencies of the day in that regard. I do not intend voting for the Minister's amendment. I will vote for the Fianna Fáil amendment because I believe it is the correct one. We are being asked to give the Minister some powers. I accept Deputy Shatter's explanation that the Minister intends bringing forward the regulations on Report Stage. I would be obliged if the Minister dealt with that matter again briefly. If he has given the undertaking I do not want him to repeat it but if he has not he should support what has been stated by Deputy Shatter.
The House is being asked to adjudicate on regulations although we do not know anything about them. We have a rough outline in the amendment but the regulations may be comprehensive or short. We do not know what the regulations will contain or the safeguards that will be in then. I am certain that if the Minister gives an undertaking that they will be reasonable and proper regulations and that the citizens protection will be paramount we can accept that. It must be remembered that the Garda Síochána have rights in relation to the Bill also. Their rights should be protected. Are we being asked to pass the Minister's amendment on the basis of the promise the Minister has given, that the amendments will be before the House on Report Stage? It should be remembered that on Report Stage we can only make a contribution once to an amendment. That is very restricting and is a problem we will have to confront on that Stage. That is not right because there may be aspects of regulations that may be questioned by other Members following one's own contribution. A Member may wish to raise queries having listened to the contributions of others.
Has the Minister the proposed regulations in contemplation or in rough draft? I accept that the Minister may not be able to answer those questions now and I do not wish to take him short. Will the Minister tell the House if the regulations are in draft form in the desk of some civil servant in his Department? If not, we are being asked to take too much upon ourselves here. In the context of this legislation we should not be asked to take things on trust. This is too serious a piece of legislation for that.
I agree that the amendment has been discussed for a long time but I should like to be allowed another short gallop on this theme. It would be a pity if Deputies Andrews, Skelly and others who have spoken on this were to be divided about this. If I understand the Minister correctly some of the apprehensions expressed are groundless. For the purpose of argument let us assume that the Minister had not intended to introduce any regulations but merely to have the powers of section 3 with the existing law about custody and the treatment of people in custody as it stands. In what way are persons in custody, or those who may be in custody, worse off under the Minister's regulations than they are now? Would they be worse off under the Minister's regulations? If I understand the Minister correctly his regulations do not purport and could not purport to suspend or diminish any other persons constitu-tional or legal rights when they are in custody. People have such rights when in custody, a whole rake of them. There is no way that the Minister can set these at nought by regulation. There is no way that the Dáil could do so by a Bill.
People in custody have to be properly treated. There is a raft of decisions, going back in particular over the last seven or eight years, adding up to a dimension of due course of law, particularly in the context of fair procedures, the personal rights of people and so on. Those things have to be respected. I do not understand these regulations to be purporting to abridge any of those rights. On the contrary, I assume that what the Minister is trying to do is to give another dimension to these rights by tacking into them formalities such as entering things in books and so on. The concern shown by the House is very much in order and correct. We must be concerned about this. The direction it is taking is perhaps undeserved. I was not listening when the Minister introduced his amendment but perhaps he did not make his point clear. I understand that his amendment in no way diminishes existing rights but on the contrary is an attempt to regularise or reinforce them.
I would be very sorry to have a difference with Deputy Skelly on a point like this. I admired his very practical allusion to the realities of life inside a police station and the assumption of Deputies that it was like life in the tourist class of the SS Aquitania where you would expect to be woken with a morning cup of tea before your interrogation was resumed. That point was well taken. However, I say to Deputy Skelly and those who share his apprehension about the effect of these regulations, suppose for the sake of argument that the Minister's regulations were word for word identical with the very well drafted amendment No. 16 which Fianna Fáil put down. Subsection (10) (e) of that amendment requires a member in charge of a Garda station to enter in the records of the station the details of the grounds for extending the period of detention. Suppose, because he himself has not had any sleep or is neglectful or possibly because he is insufficiently and perhaps deliberately or culpably inattentive to the prisoner's rights, he fails to do that. I do not see that it should be a criminal offence. Certainly it should be a disciplinary matter if he disobeys a regulation, but I cannot see that it should be a matter for criminal or civil proceedings and neither does the Fianna Fáil amendment purport to make it such.
All that the Minister's regulations purport to do, assuming for the sake of argument that those regulations were word for word the same as the Fianna Fáil amendment, is to say that that failure alone will not vitiate or make illegal ab initio the custody or render inadmissible an admission made in the course of it. If something else is done over and above that, if the man is assaulted or his personal rights are infringed, if he is not allowed to get in touch with a solicitor and so forth, these are very serious breaches of his rights and they may very well vitiate his custody; but the breach of the black and white of the Fianna Fáil amendment, assuming that it is adopted by the Minister in toto, will not of itself amount to something which invalidates the custody.
The same goes for Deputy Skelly's apprehensions about the Judges' Rules. I do not understand the Minister's regulations as having any effect on the Judges' Rules. If I did I would share Deputy Skelly's anxiety. I do not take the Minister's regulations to be intended to qualify or whittle down the effect of the Judges' Rules in the slightest degree. I am sure that the Minister, an honest man, will not have me, who intends to vote for him, under a misapprehension about this. If I am and if the Minister intends that the Judges' Rules be affected by these regulations, I hope that he will say so honestly. However, I do not think that that is his intention.
There seems to be some confusion in the minds of Deputies opposite about the effect of our proposed amendment. Deputy De Rossa and Deputy David Andrews made the valid point that we are now being asked to pass the section without knowing what the safeguards may be. That point would be met at least partially if our amendment was accepted because at least the minmum of safeguards would be included in the section as passed.
Deputy Shatter has made the point that the changes proposed by us in our amendment do not constitute a full and adequate code of conduct for the Garda. We never pretended that they would, and if our amendment is accepted we have no objection to the Minister going on to draft a full code of conduct for the Garda. The only difference is that if our amenment were accepted the proposals which we are putting forward to protect the person in custody would not be subject to the constraints in section 6(3) in the Minister's amendment No. 24. We want to see to it that there are at least some regulations the breach of which will render the evidence inadmissible. That will be the effect of our amendment. We want to have this amendment accepted as part of section 6(3) and then that section will not be subject to the constraints which the Minister tells us will apply to the regulations which he intends to introduce.
I am not going to delay the House. We have put down amendment No. 16 to have the whole question of safeguards well discussed. We have had a very good discussion. I do not agree with what has been said here from time to time about repetition. There was very little repetition and Deputies have made very constructive suggestions and proposals in relation to this area. I have withdrawn subsection (14) in my amendment No. 16, and I propose that amendment No. 16 be accepted.
I do not think that you can withdraw part of an amendment.
Tá
- Ahern, Bertie.
- Ahern, Michael.
- Andrews, David.
- Aylward, Liam.
- Barrett, Michael.
- Brady, Vincent.
- Brennan, Mattie.
- Brennan, Paudge.
- Briscoe, Ben.
- Browne, John.
- Burke, Raphael P.
- Byrne, Hugh.
- Byrne, Seán.
- Calleary, Seán.
- Collins, Gerard.
- Conaghan, Hugh.
- Coughlan, Cathal Seán.
- Daly, Brendan.
- De Rossa, Proinsias.
- Fahey, Francis.
- Fahey, Jackie.
- Faulkner, Pádraig.
- Fitzgerald, Liam Joseph.
- Flynn, Pádraig.
- Gallagher, Denis.
- Gallagher, Pat Cope.
- Geoghegan-Quinn, Máire.
- Harney, Mary.
- Haughey, Charles J.
- Kirk, Séamus.
- Kitt, Michael.
- Lenihan, Brian.
- Leonard, Jimmy.
- Leonard, Tom.
- Lyons, Denis.
- McEllistrim, Tom.
- Mac Giolla, Tomás.
- Morley, P. J.
- Moynihan, Donal.
- Nolan, M.J.
- Noonan, Michael J.
- (Limerick West).
- O'Dea, William.
- O'Hanlon, Rory.
- O'Keeffe, Edmond.
- O'Kennedy, Michael.
- O'Leary, John.
- Ormonde, Donal.
- O'Rourke, Mary.
- Power, Paddy.
- Reynolds, Albert.
- Treacy, Noel.
- Tunney, Jim.
- Wallace, Dan.
- Walsh, Joe.
- Walsh, Seán.
- Wilson, John P.
- Woods, Michael.
- Wyse, Pearse.
Níl
- Barnes, Monica.
- Barrett, Seán.
- Barry, Myra.
- Begley, Michael.
- Bell, Michael.
- Bermingham, Joe.
- Birmingham, George Martin.
- Boland, John.
- Bruton, John.
- Bruton, Richard.
- Burke, Liam.
- Carey, Donal.
- Collins, Edward.
- Conlon, John F.
- Doyle, Avril.
- Doyle, Joe.
- Dukes, Alan.
- Durkan, Bernard J.
- Enright, Thomas W.
- Farrelly, John V.
- Fennell, Nuala.
- FitzGerald, Garret.
- Flaherty, Mary.
- Flanagan, Oliver J.
- Glenn, Alice.
- Griffin, Brendan.
- Hegarty, Paddy.
- Hussey, Gemma.
- Kavanagh, Liam.
- Kelly, John.
- Kenny, Enda.
- L'Estrange, Gerry.
- McCartin, Joe.
- McGahon, Brendan.
- McGinley, Dinny.
- McLoughlin, Frank.
- Manning, Maurice.
- Mitchell, Gay.
- Connaughton, Paul.
- Coogan, Fintan.
- Cooney, Patrick Mark.
- Cosgrave, Liam T.
- Cosgrave, Michael Joe.
- Coveney, Hugh.
- Crotty, Kieran.
- Crowley, Frank.
- D'Arcy, Michael.
- Deasy, Martin Austin.
- Desmond, Barry.
- Desmond, Eileen.
- Donnellan, John.
- Dowling, Dick.
- Molony, David.
- Naughten, Liam.
- Nealon, Ted.
- Noonan, Michael
- (Limerick East).
- O'Brien, Fergus.
- O'Brien, Willie.
- O'Donnell, Tom.
- O'Keeffe, Jim.
- O'Leary, Michael.
- O'Sullivan, Toddy.
- Owen, Nora.
- Pattison, Séamus.
- Prendergast, Frank.
- Quinn, Ruairí.
- Ryan, John.
- Shatter, Alan.
- Sheehan, Patrick Joseph.
- Skelly, Liam.
- Spring, Dick.
- Taylor, Mervyn.
- Taylor-Quinn, Madeline.
- Timmins, Godfrey.
- Yates, Ivan.