Dáil Éireann debate -
Thursday, 1 Nov 1984

Vol. 353 No. 5

Criminal Justice Bill, 1983: From the Seanad (Resumed).

The Dáil went into Committee to resume consideration of amendments from the Seanad.

Seanad amendment No. 1:

In page 3, between lines 11 and 12, the following inserted:

"(2) An order shall not be made under subsection (1) in respect of any of the following sections namely, sections 4 to 6, 8 to 10, 15, 16, 18 and 19 until provisions relating to the investigation and adjudication of complaints by the public against members of the Garda Síochána not above the rank of chief superintendent have been enacted by the Oireachtas and have come into operation and until regulations under section 7 have been made."

Debate resumed on amendment No. 1 to Seanad amendment No. 1:

In the third line to delete all words after "provisions" and substitute the following:

"have been enacted by the Oireachtas for the investigation and adjudication of complaints from the public against members of the Garda Síochána by or under the direction of an independent Complaints Commission, and until regulations under section 7 have been approved by the Oireachtas".

—(Deputy Woods.)

Mr. D. Andrews

My contribution in the time available to me before Question Time related to my request to the Minister to give the House the benefit of his interpretation of the amendment. If he can convince those of us who are open to conviction that words mean what they say then we would be going a long way down the road towards meeting the views of Fianna Fáil on what amendment should be accepted. The Minister has sought to put in an amendment to an amendment passed by the Seanad. It is rather significant that the word dropped in the Minister's amendment is "adjudication". It is my belief that if the Minister retained that word and included "investigation and adjudication of complaints from the public" and so on in his amendment there would not be any need to discuss this matter further.

I appeal to the Minister to explain in unequivocal language exactly what his amendment means. The Minister may return to me and say, "Deputy Andrews does not know the meaning of the English language" but, like all languages, words, phrases and sentences in the English language are open to a number of meanings. I am asking the Minister to give the House the benefit of what he believes his amendment to mean. I am seeking an unequivocal interpretation of the Ministerial amendment because of an article the Minister wrote last week. Through the good offices of the Dáil Library I obtained a copy of the Irish Independent of 27 October 1984. That newspaper contains an article under the heading, “That Bill: Getting the Balance Right”. The Bill referred to is the Criminal Justice Bill. The author of the article was no less a person than the Minister for Justice. The Minister for Justice is entitled to write articles. It is helpful in the public interest that he should write articles on issues of this nature. He has performed a public service. I am in favour of politicians, when invited, contributing articles to newspapers. I congratulate the Minister and I believe that if more of his colleagues followed that line by putting their thoughts on paper the public would be grateful. While I am gratified by the Minister's article and the fact that he considers the Bill important enough to write about, he has raised a confusion which I understand was raised by the Government side during the course of the debate. The confusion occurs in the use of the English language.

In the course of that lengthy article there is a cross-heading, "Complaints Procedure". The Minister treated readers to the following point in regard to that body:

The establishment of a body other than the Garda Síochána to deal with complaints against the gardaí from members of the public and to supervise the investigation of the complaints — and, in appropriate cases, to carry out the investigation itself — is a further safeguard.

The body will also adjudicate on the complaints, insofar as they are not dealt with by the courts. The drafting of this Bill is almost finalised and I expect to introduce it during the present session.

I suggest that, having read that, Members should move on to the next piece of Ministerial wisdom, the Minister's amendment to the Seanad amendment. The Minister's amendment states:

... after "investigation" and substitute the following:

"of complaints from the public against members of the Garda Síochána not above the rank of chief superintendent and the adjudication by a body...

There is no comma after the word "body" and the amendment goes on to state:

...other than the Garda Síochána...

There is no comma after "Garda Síochána" as I thought there might be. I was never an expert on English grammar but I thought there would be a comma after those words. The Minister's amendment goes on to state:

...of such complaints have been enacted by the Oireachtas and have come into operation and until regulations under section 7 have been made.

What do the words "other than the Garda Síochána mean? Do they mean that the Ministerial amendment has the same meaning as the amendment tabled by Deputy Woods? If that is the case we have been wasting our time all day. Do the words "other than the Garda Síochána" preclude the Garda Síochána or do they include the Garda Síochána? The Minister should explain this to the House. He may have done so last evening but I do not think he went into the matter in any great depth. His effort did not make the matter clear to me, or to Members of his party.

We should not make any apology to any person about the length of time we are devoting to consideration of this amendment. If it takes us next week, the following week and the week after that to deal with it we will be doing a public service. We are dealing with a Bill that does not do any service to either the civil liberties of the gnáth duine or to the Garda Síochána. The Minister has said he is anxious to get the balance right and I suggest that the only way he can do that is to bury the Bill with all the decency that is available. I would not be too anxious to engage in any prayers in that context but the getting of the balance right would be the burial of the Bill. We should look at the real problem and what the Garda want, proper funding and equipment and a proper induction programme. Why not a Cadet service for the Garda Síochána? What is wrong with our Army? We have one of the most disciplined peacetime armies in the world and we have a fine Garda Síochána but there are a couple of mavericks in it and the sooner the better they are rooted out in the interests of the organisation they pretend to represent.

That is the only point we are making. When somebody says to me: "Well, Andrews, you stood up in the Dáil and asked that the Bill be given a drop-kick up into the ether or space somewhere" and then continues to say to me "What is your solution to the problem? If you do not want the Bill, what do you want in its place?" I would reply that I want a proper, efficient, dedicated Garda Síochána force. I believe we have that to a great degree; I do genuinely believe that. But I believe we can get a better Garda Síochána force and not with the compliments of this Criminal Justice Bill. I could not care less had this Bill been on six previous Ministers' desks. That does not make it any better, any the more justified or that we should now be dealing with it as we are. It does not make a special case for its continuance in existence; quite the contrary. I am not concerned whether it was a Fianna Fáil, Fine Gael, Labour, Coalition Minister, or whoever, had it on his desk and did not produce it. That does not make it any better as far as I am concerned.

At the risk of being repetitious we are now seeking perfection of an imperfect document. I am asking the Minister to explain the meeting of the words contained in his amendment, explain them to people like myself who may not be au fait with the exact meaning of words in the English language. That is all I am asking the Minister to do and, if he does that, he will have come a long way on the path we want him to travel in reaching some sort of consensus on our amendment. Our amendment is clear in its language — there can be no doubt about what it means. It means complete independence of the complaints tribunal from the Garda Síochána. We know already what Deputy O'Dea and Deputy Cowen said about the principles of natural justice — that a person should not be a judge in his or her own cause, and that is how we view the ministerial amendment to the Seanad amendment.

Mr. Durkan

As one of the Members who spoke on the Second Stage of this Bill in its support, on the basis that there was then and is a groundswell of opinion in the country who held or hold the view that some changes in legislation are necessary in order to curb the increased crime rate, I do not necessarily agree with many of the views expressed to the effect that there was no need for this Bill. I believe — and here I am referring to serious crimes — that there was considerable concern felt among law-abiding citizens at the manner in which it appeared that some rather powerful groups were able to circumnavigate the system in relation to very serious crime. That does not mean that I am going into a preamble on the Second Stage debate, despite the fact that practically——

An Leas-Cheann Comhairle

The Deputy must confine his remarks to the amendments.

Mr. Durkan

I propose doing so, thought I might remind the Chair that practically every Member who spoke yesterday and so far today made what was in effect a Second Stage speech.

An Leas-Cheann Comhairle

Passing references.

Mr. Durkan

I would say very long references.

In relation to this amendment — given the unfortunate, albeit isolated incidents which have taken place in recent times — I believe it would be advisable and essential that a complaints commission or tribunal be independent in every sense of the word, that is both in investigating and in adjudicating.

I appreciate what the Minister said last evening in relation to the difficulty with regard to the word "independent" at this stage. I would submit that, unless we can have something along those general lines, which could be seen clearly both by the Members of this House and the general public, then we could possibly run the risk of allowing a serious undermining of the authority of and respect for the Garda Síochána that should exist. I believe, furthermore, that some members of the force themselves would be concerned. should there arise a situation at some time in the future in which an investigation might be carried out, that such would be carried out from within the force. It could well happen that the result might not necessarily be seen to be independent and fair. I believe that would constitute cause both for serious public concern and a further erosion of the respect for and authority of the force.

Whether by way of this amendment or another Bill relating to the complaints tribunal, I contend it is absolutely essential that, whatever commission or tribunal is established to investigate grievances, its membership be composed in such a fashion as to ensure, first, that the general public would feel their interests were protected at all times and that they had access to an impartial arena where their grievances could be aired and decisions taken on foot of same. Secondly, I believe it most important that the Garda themselves in the pursuance of their duties would feel that they were protected at all times against unscrupulous people who might well lodge nefarious complaints against them which might or might not be well founded.

I would ask the Minister to bear in mind the views expressed to me, and I am sure to many others, by many extremely law-abiding, upstanding, citizens who would be concerned lest at this stage any mistake be made whereby an avenue could be left open with certain unscrupulous people taking advantage thereof. For that reason the independent nature of an appeals committee, commission, tribunal or whatever is most essential. However, I might reiterate that quite a number of the recent submissions have been fairly general and more along the line of Second Stage speeches.

An Leas-Cheann Comhairle

The Deputy was completely out of order in his remarks, setting a bad example.

Mr. O'Kennedy

If we could reach a degree of consensus on what the Minister proposes, on what Deputy Woods hopes to achieve through his amendment, if we had a complaints procedure which was seen to be independent and that would conduct its investigations entirely independently, adjudicating in a manner which would be acceptable to us, as Deputy Durkan has just said, we would have achieved a considerable amount. But the reality is that, even then, we would be confining ourselves if we ignored the developments which now focus our attention on complaints against the Garda Síochána. It must be remembered that it is vitally important that we have an awareness here particularly of the need for a consensus and a degree of respect for the authority even of this House. If that respect falls down, if the manner in which the authority of the Garda — or of the Ceann Comhairle in this House, to give an example — is not accepted by consensus then all the complaints procedures in the world will not achieve what all of us here want to achieve, that is, a degree of respect for the force which is by definition required to maintain the peace and protect the citizen. That is why there is just a danger that in all of this we might not alone confine ourselves — though I know that all sides of the House have given very considerable concern to these matters — to trying to vindicate the role of the Garda but also to achieving the proper balance between their role and that of the citizen.

We are now talking about protecting the public against the very people who are there to protect them. It might be helpful to recap in order to understand how this situation came about. Over 14 years ago the Conroy report stated:

However, despite organisational shortcomings, we were left with the abiding impression of the Garda Síochána as a Force whose members were men and women of integrity, dedicated to a job with increasing difficulty and complexity, a job that is frequently thankless.

I represented the Garda Representative Body before the Conroy tribunal. That was 14 years ago, when conditions were not nearly as complex as they are today. We should all be conscious of the role we are asking the Garda to discharge and the conditions under which they are being forced to operate. I have had close associations since that time with the Garda Representative Body. We worked on that report for two years and made recommendations of all kinds, but the Department of Justice confined themselves to a one hour reply to all the recommendations. They ignored the problems which were then emerging and now we are paying the price.

While I respect the right of representative bodies to make a case, one of the things which is undermining the role of the force and their authority is that every time there is a public issue we hear only from these representatives and not from those responsible for the Garda, the Commissioner or his personal spokesman. Is it any wonder that the public are confused when the person charged with the responsibility for those over whom he has authority does not speak on their behalf? All too often there are complaints about the way the Garda behave and it is time that the Commissioner or those immediately associated with him realised that they have the first responsibility to speak in respect of the role of the force and to reassure the public. If the trade unionists — I do not use that term as one of denigration since I once represented them — have a view to express on behalf of their members, let them speak in that limited role and not in the way which has been undermining the force.

There is also the question of including a body other than the Garda Síochána. That could only be confined to civil servants or, to be more precise, officials of the Department of Justice. I have respect for the commitment of the men in that Department but we would be ignoring reality if we did not acknowledge that when one works within those confines one tends to form the view that the only people who can be trusted with either the security of the State or the maintenance of law and order are the officials of that Department. It is, perhaps, understandable. The officials in the Department of Finance think they are the only ones who know how to conduct matters of finance. I would hope the Minister could assure us that there is no such intention.

Minister for Justice (Mr. Noonan,

Limerick East): None whatever.

Mr. O'Kennedy

I say that in the interests of the officials of the Department as well. I am glad to get the Minister's assurance. I do not want to intervene in what has been throughout the course of this debate a very balanced analysis from Deputy Woods. The Minister has acknowledged that. I would prefer to leave it to the two Members who are most directly involved.

The public are not merely concerned about investigation procedures in relation to the Garda. They want a return to what we had in 1968-69, before this tribunal was set up. They want a degree of respect, confidence and mutual understanding, the only basis on which we will get what we would all like to achieve. All Governments — and I have been in Government myself — have something to answer for in not looking to these recommendations. I am not making the case simply to review what was said 15 years ago. That report dealt with recruitment and training and made recommendations as to the character and presentation of the garda, his mannerisms and his general professional approach. These recommendations have not been implemented during the intervening years. It is sad that officialdom and Governments have ignored them. A tension arises in relations between members of the public and the Garda because they cannot relate to each other and respect their respective roles. I would ask the Minister to look at all of these issues such as recruitment and training and post-recruitment training.

An Leas-Cheann Comhairle

It is outside the scope of the debate. You have already referred to it. This is a very tight debate.

Mr. O'Kennedy

All these recommendations have been ignored and it is little short of a disgrace. The force has been reduced to the present state and it is very regrettable. There are men and women within the force of the praiseworthy type mentioned in the Conroy report. That tribunal stated that they would be failing in their duty to the Minister if they did not strongly urge that an examination be carried out by appropriately qualified people into the role, organisation and personnel policy of the force. They did not fail in their duty but those in authority and the officials most directly responsible have failed in their duty. The Minister has the responsibility now and I hope that responsibility will be discharged in a proper way in this connection.

An Leas-Cheann Comhairle

The Deputy is wandering away again.

Mr. O'Kennedy

I am not. The year 1969 was a period of employment, activity, hope, confidence and buoyancy. I will not bring economics into it.

An Leas-Cheann Comhairle

You will not be allowed.

Mr. O'Kennedy

We all know that 1984 is very different. The circumstances with which the Garda have to deal are very different, especially in urban areas. They are being asked to operate in an impossible social environment. Why do we have the drugs scene? Because the normal dignity of employment is being denied to people. I hope we will face the realities. Deputy Woods and the Minister, in responding somewhat belatedly to what Deputy Woods has urged, are taking a balanced view. I hoped the Minister in responding to this amendment would recognise that it would be better if he had taken the bit in his teeth. Had he agreed in the Dáil some months ago to what Deputy Woods had proposed, we would not have this build up. There is no reason I can think of why he will not accept what even some of his own backbenchers have been asking him to accept, that is, the terms mentioned in Deputy Woods' amendment. The Garda and the public would be reassured if he accepted it.

Mr. Shatter

This effectively is a Committee Stage debate and I wonder if we could have a response from the Minister because we seem to be going around in circles.

An Leas-Cheann Comhairle

The Chair has no control over the Minister answering.

Mr. O'Dea

Deputy Andrews was anxious that the Minister explain certain terms in the amendment, such as body other than the gardaí. I agree with Deputy Andrews that clarification of that phrase would be welcomed. The only relevant meaning of those words will be that given by the courts, and any explanation the Minister gives in this House will have no legal standing. I am very unhappy with those words. As I pointed out this morning a body other than the gardaí can mean a body which is composed substantially of gardaí.

The importance of an independent complaints commission is emphasised in this debate and that is what we are trying to achieve in this Bill. Deputies on all sides when discussing this Bill are speaking as if its implementation into law will immediately solve the crime problem and will start to turn back the tide. The reality is that it will do nothing of the sort. This Bill is seeking to solve problems which are not there, but no attempt is being made to deal with the problems that are there. Deputy O'Kennedy adverted to some of these problems. When a Government purport to solve problems that do not really exist the result is usually neutral, but unfortunately in this case the results are not neutral. That is why we are pressing very strongly for an independent complaints tribunal.

The net effect of what the Minister is doing now is to give greater powers to the Garda force which unfortunately in the past have abused the powers they already have. There have been some flagrant, dramatic examples of abuse in recent days in relation to two cases which achieved a certain notoriety. But I am talking about the more widespread abuse of section 30 of the Offences Against the State Act, 1939, which allows the Garda to detain for questioning people suspected of subversive crimes. The Garda have repeatedly used section 30 to bring in people for questioning whom they knew had no connection whatever with subversive crime. In that sense, the Garda have abused the powers they have under existing legislation.

Last night Deputy Woods referred to an 1981 Supreme Court case —The People versus Lynch— in which it was decided by the Supreme Court that the gardaí by inviting people to Garda stations to discuss matters relating to an investigation were in effect abusing their powers. As I said, we have several examples of gardaí abusing the powers they have and here we are giving them more powers. Against that background we will be satisfied with nothing less than a totally independent complaints board which will be totally independent when it comes to investigating complaints and adjudicating on those complaints.

Mr. Power

I want to tell the House what the people I represent say about this Bill. It is very important that the complaints commission be entirely independent. Those who are to investigate or adjudicate on these complaints will have to be seen to be completely independent. The general public will need this assurance if we are to restore their faith and respect in the Garda. Over 90 per cent of the gardaí need to be protected from the small percentage of bad eggs in the force.

I would like to question the phraseology used in the Minister's amendment. Why with all the forces at his disposal does the Minister come up with wording which is so vague, particularly the phrase "other than the gardaí"? From where did that particular phrase emerge? What construction will be put on it? Did it emerge from the Department of Justice? Did a civil servant suggest this phraseology which is intentionally vague? Is it possible that the people who thought out that phrase might be on this commission?

If any legislation passed by this House is to work, public co-operation will be needed, but we will not get public co-operation if the train of thought which exists in the Department of Justice at present, continues. The public want to know that the truth will out, but up to now they have been convinced that in some cases the truth did not out. They see the Department of Justice as being politicised, and never more so than since this Minister took over.

Mr. Shatter

That is disgraceful.

Mr. Noonan

(Limerick East): On a point of order——

Mr. Power

I am dealing with an amendment which, according to the phraseology used, could mean that the very people in the Department in whom the public have no confidence will adjudicate on these complaints.

Why was this amendment phrased in such a way that only people up to the rank of chief superintendent would be investigated? Why were not Deputy Commissioners and Commissioners included? Were they felt to be above reproach? Is it felt that they can do no wrong? The public would not agree with that. An order might emerge at Commissioner or Deputy Commissioner level and passed to a chief superintendent and the subsequent investigation would have to stop with the unfortunate chief superintendent who would be left carrying the can.

Mr. Connolly

That is the kernel of the matter.

Mr. Power

If this Bill is to work, we must have public co-operation. It is necessary that the Department come clean and that there be an independent complaints commission. The Minister now has an opportunity to set up an inquiry to clean up the very sorry image which is the public perception of the Department of Justice and some members of the Garda Síochána. The Minister has no option but to agree to our amendment.

Progress reported; Committee to sit again.