I move the following amendment:
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 providing for adequate safeguards under section 7, have been approved by the Oireachtas and made by the Minister".
The situation in which we now find ourselves is a most unusual one in that we have an amendment from the Seanad, amended in Committee of the whole Dáil, and we have an amendment in my name proposed on Report Stage which I have just moved, we having accepted, on Committee Stage, the Minister's amendment since ours was not accepted at that time.
My amendment proposed to the amendment agreed by Committee of the whole Dáil is to delete all words after "provisions", in other words, that 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"— deleting all words thereafter and substituting 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 providing the adequate safeguards under section 7, have been approved by the Oireachtas and made by the Minister".
I should point out that our approach to this Bill has been consistent, critical and constructive from the outset. In principle we accepted its main purpose. We went on to propose amendments we considered essential to provide balance between the new powers sought by the Minister and the rights and liberties of citizens.
As we know, crime reached record levels in 1983. Indeed in parts of this capital city the Garda are virtually under seige in certain circumstances. In our view, indeed in the view of both sides of the House, a strengthening of the law will help the Garda in their difficult task. We accept this proposition in principle, that a strengthening will be of assistance to the Garda.
We especially welcome the provisions allowing for majority verdicts in certain cases and for the giving of notices of alibis within a prescribed period. We also welcome the provision for consecutive sentences for crimes committed by persons while on bail and the introduction of a new offence of failure to surrender to bail. Those provisions had the support of all sides of the House. Of course we endeavoured to have the granting of bail to persons accused of drug trafficking and distribution reserved to the High Court but the Minister rejected that proposal. We believe also that the introduction of proof by written statement will save countless hours of Garda time in court, hence leaving them freer to tackle crime on our streets and among our communities.
Our main concern is with the sections of the Bill providing for the arrest and detention of persons, without being charged, for periods of six, 12 or up to 20 hours. This represents a total new departure from our law, with the exception of the Emergency Powers and the Offences Against the State Acts which are confined to subversive activities. Once the Minister's proposals become law it will mean that a citizen can be arrested on the suspicion of a member of the Garda Síochána, subsequently be detained for up to 20 hours in a Garda station for questioning, that questioning, of course, being limited to a maximum period of 12 hours, two six-hour periods.
Originally those powers could be applied to any child from the age of seven upwards. However, in the course of the Dáil discussions the Minister accepted our amendment to the effect that all children under 12 years of age ought to be excluded. Indeed we even wondered whether that age should be 14 and the Minister gave an undertaking to consider that matter. Nevertheless the age finishes up at 12. The Minister agreed also that the provisions with regard to arrest and detention would apply for a limited trial period of four years only. Again that has been agreed by the House.
From the outset we also insisted on two other major provisions, namely, adequate safeguards for persons who were detained in custody and that a formal independent complaints procedure be introduced. We advanced the safeguards we felt should be included in or which should accompany the Bill. The Minister was in agreement with many of the safeguards we proposed but originally he would not include them in the Bill, nor would he allow them be discussed with the Bill. We had several discussions about this aspect in the course of the passage of the Bill through this House.
Earlier this year we also put forward a draft complaints procedure. Here again the Minister insisted originally on having the Bill passed before he would consider any proposals for such a complaints procedure. The Minister would give us verbal assurances only that he would introduce safeguards at a later date. However, the subsequent Seanad debate forced the Minister to change his stance and thinking. We have now a formal commitment from the Minister which of course is wholeheartedly welcomed in this House because it represents the kind of commitment we first wanted included in the Bill. However, we would have preferred that the complaints procedure and the relevant safeguards would have been discussed with the Bill. We believed that to be the right approach, that before taking the decisions which have not been taken in the Bill, those safeguards should have been considered, discussed fully in the context of the Bill and its consideration in this House.
I should say that the minds of many Members of this House at that time were attuned to the whole problem — they were familiar with the law, with the realities of the law, the Minister had explained many of them and we had endeavoured to tease out many on Committee Stage. Therefore, Members were fully versed on and familiar with the situation throughout the passage of the Bill. In that sense it was a suitable time to consider such safeguards and complaints procedure in the context of the Bill and of the new powers being provided therein. However, the Minister would not do this but now he has given us a firm commitment that sections 4 to 6, 8 to 10, 15, 16, 18 and 19 will not come into effect until certain provisions are introduced.
We have always insisted that increased powers for the Garda must be balanced by adequate safeguards for the citizens. A person in custody must have access to a solicitor and should be provided with a custodial guardian or member of the station not connected with the investigation who will see to it that the person is treated humanely and in accordance with the regulations. As they stand, the Minister's proposals discriminate positively against the poor and underprivileged. If a person has the money he can call a solicitor who will advise him of and protect his rights. We know from experience that this is a very important friend or aide to have if one finds oneself in a situation like this. Many people engaged in a life of crime are very familiar with the system and will ensure that they have a solicitor available, but the many innocent people who will obviously be taken in and questioned under the powers of this Bill may not know that they have a right to a solicitor. However, if they know and have a solicitor present, their position will be safeguarded. We have heard in this House that, if a solicitor phones or lets it be known that he or she has an interest in the person in custody, that can have a beneficial effect for that person.
Under this Bill we still have the problem of a person who does not have the money to employ a solicitor; and since the free legal aid does not apply until a person is charged, a person will be at a great disadvantage. This serious discrimination must be removed before the new powers are applied. That is one of the very strong reasons we support the amendment from the Seanad as amended by the Minister. This is a very serious implication of this Bill. While the Minister might not yet have found a means of dealing with this problem, I trust he is anxious to find a practical solution to it. Nevertheless, we cannot extend powers or introduce these measures unless we can ensure that those who are less privileged will have an equal opportunity before the law. This discrimination must be removed before the new powers are applied and I trust the Minister will bear that in mind when he is considering the safeguards which will be included in the regulations.
Special safeguards will also have to be provided for the mentally handicapped. Among the other safeguards which we consider necessary are provisions for informing the person detained of the offence of which he is suspected. We felt that was very important because if a note has been taken of the initial offence one can feel fairly happy that the person has been taken into custody on reasonable grounds. It is important that this information be recorded so that the reasonable grounds can be clearly seen to have existed. We see the Minister introducing safeguards in the regulation covering the following: the keeping of records, the length of questioning time, not more than four hours, providing the person with material for note-taking, the provision of some form of electronic or other recording device, and not removing personal belongings, except where necessary because a person might feel out of place.
There is an urgent need for an independent procedure for investigating and adjudicating on complaints against members of the Garda Síochána. The Minister will be aware from recent experience that there is a need to have an independent complaints procedure but, given the new powers being introduced, there is even a greater need. Now is the time to deal objectively with this issue. There have been allegations of heavy-handed interrogations. We have available to us the very valuable Ó Briain report with recommendations both for persons in custody and for the Garda. We have also pointed to the widespread public concern regarding the unsolved Kerry baby death and the interrogation and death of a citizen in Shercock Garda station, County Cavan. Both of these incidents cry out for an independent inquiry mechanism.
We have seen other examples which suggest that a minority of gardaí have misused the trust placed in them by their colleagues, by the Oireachtas and by members of the public at large. In the interests of the Garda, the public and the politicians we believe that the new complaints procedure must be independent and be seen to be so. We propose an independent complaints commission which would be outside political, ministerial or other interference, and I mention particularly the different kinds of interference and not just outside the Garda Síochána. We went so far as to introduce this draft complaints procedure early in the year. We do not propose that it was in any way perfect, but it was a reasonably comprehensive draft document which could have formed the basis for a full discussion on this subject. I find it very hard to see why this suggestion could not have been taken up, developed and modified where necessary. If this had been done we would now have a complaints procedure and the provisions which are seen to be so urgently needed could go into operation.
The Minister has come half way to meet our proposals. His latest amendment provides for adjudication by a body other than the Garda Síochána but the investigation is still not under the direction or control of the independent body. Until both the investigation and adjudication of complaints are under independent direction and control we will not be satisfied. The Minister's amendment provides for adjudication by a body other than the Garda Síochána and says:
In the third line all words after "investigation" deleted and the following substituted therefor:
"of complaints from the public against members of the Garda Síochána not above the rank of chief superintendent and the adjudication by a body other than the Garda Síochána of such complaints have been enacted by the Oireachtas and have come into operation and until regulations under section 7 have been made".
The Minister is talking about a body other than the Garda Síochána. Why single out the Garda? Why not "other than the Minister"? Why not "other than the Department of Justice"? Why not "other than the politicians"? Why not just "independent and free from outside interference of any kind, whether from the Garda, from the Minister, from the Department, from politicians or from the Oireachtas as a whole"? The complaints procedure must be seen to be independent and totally free from outside interference. We are saying that all ranks, including senior officers of the Garda, must be subject to the complaints procedure just as civil servants must answer before the Ombudsman in respect of complaints from the public. The Garda deserve a true and impartial body so that they can be assured of justice and fair play. This applies in both directions because any member of the Garda would be given objective and even-handed treatment which would not be related to the exigencies of time, moods, pressures or anything else. I do not wish to go into individual cases but one can think of some that would be relevant at this point. When such cases arise, cases that evoke major publicity, it is difficult to appreciate that fair and objective treatment could be meted out in the absence of an independent procedure. There is a danger of over-reaction in some cases and of under-reaction in others. That is why the procedure must be independent. We must have a procedure that will be fair to the gardaí in question and to the citizen. So far as citizens are concerned, they may often have to be told that they do not have a complaint but in such circumstances we would be able to stand over that decision if we had an independent body.
The same situation applies in respect of the Ombudsman. In up to 80 or 90 per cent of cases brought to his attention, it may transpire that the complainant has no case against the civil servant concerned. That situation is very good from the point of view both of civil servants and politicians. We can all rely on the independence of the Ombudsman. Nobody, by innuendo or otherwise, can take from the independence of his office.
This important Bill is now passing but the much needed extra powers are being suspended. They are being suspended by way of this amendment despite our having heard so much about the urgency of providing those powers and of the effect they could have in terms of combating crime. I am aware that some people here have put the opposite view but the official view was that there was an urgent need for these powers. The powers are being suspended because the Minister, for some reason, wishes to have the new powers of arrest and detention agreed before putting the two trump cards on the table, the complaints procedure and the safeguards. It is for the Minister to decide what his strategy is to be but it is clear that there was a difference of opinion within the Cabinet about the powers the Minister was seeking. That was obvious from the day on which the Bill was introduced because it was accompanied by two explanatory memoranda. Obviously, there were second thoughts at the last moment on the lines that some form of independent body or procedure would have to accompany the legislation. That would appear to have come from the Cabinet just before the Bill was presented to the House. It was an unusual and odd procedure for the Bill to have been accompanied by two explanatory memoranda.
Obviously, the strategy all along has been, "Give me the powers first and then I will talk to you about safeguards and about other measures such as the complaints procedure". I cannot come to any conclusion other than that. At least now it is being provided that the powers will not be implemented until the complaints procedure is available. This is the unsatisfactory position in which the House finds itself. We must be suspicious of the Minister's motive in that regard. That is why we want our amendment to be supported.
It is obvious that in our amendment we are talking about an independent complaints commission and about the provision of adequate safeguards. We are talking also about members of the force at all levels being subject to the complaints procedure. There can be no going back on these basic requirements. They must be fundamental to our approach to this Bill. That is why, having disposed of the Committee Stage, we considered it necessary and proper to wait a few days before taking the Report Stage so that we might consider this point. Having considered it, we considered it necessary to emphasise the importance of these two requirements. We would have been far happier if the Minister's proposals in these matters had been put before the House before the completion of the Bill so as to give some indication of what he was thinking.
We know that legislation alone will not solve the crime problem. The House is saying that the powers will be suspended until the safeguards I speak of are provided but the Garda say that the powers will be suspended until adequate resources are provided, including much needed additional training. In that sense, the powers are being doubly suspended. However, our job is now complete and we can only hope that it will not be too long before the Minister puts his detailed proposals before us. Let no one say that the House delayed the Bill unnecessarily. We can do no more with it until such time as the Minister has brought forward these other proposals. The powers are not to be put into operation as a result of our not succeeding in having the Minister put details of these other measures before the House.
We can do no more until the Minister gets his homework up to date. We can only stand and wait for him to come forward with these measures. The Minister excludes from the tribunal members of the Garda Síochána from the rank of chief superintendent up. I wonder if some recent events have not warned the Minister that it might be wise to bear in mind that ranks above that of chief superintendent should be included. After all, the instructions will come from the top and go down the line and it is therefore difficult to understand why those giving the instructions would not be subject to the procedures.
Throughout the debate Fianna Fáil have been critical, consistent and constructive, deliberately in our determination to contribute to the defeat of crime in Ireland. We did not always have the support of The Workers' Party, who are totally against the giving of these powers in any event. We are prepared to go along with this on the trial basis which the Minister is pursuing, once we have the safeguards and the complaints procedures. We have adopted this strategy deliberately in our determination to contribute to the defeat of crime in Ireland. We will continue in this manner so as to secure the maximum effectiveness of the Garda and the maximum protection for the lives and property of all the citizens.
