The Commissioner made a valid point when he referred to an undermining of the cultural consensus on which the force used to operate. I believe he is referring to the difficulty of policing in that on the one hand there are people who seek vengenance against the disrupters of domestic peace, while on the other there are those who believe the criminal is society's true victim. Those two concepts are not mutually exclusive. In other words, the worthy analysis of the root causes of crime should not suspend the delivery of law and order.
I wonder if I will be the only person to respond to the Commissioner's call for a debate. Who is the Commissioner speaking to when he calls for a debate? I hope he is speaking to the Minister and I hope the Minister will respond to the proposals he made in the speech yesterday, otherwise it will be an inconclusive dialogue of the deaf.
The Bill before us is an attempt by this Minister, and a culmination of the previous Minister's attempt, to resolve the ongoing row between members of the Garda Síochána holding the rank of garda. The Minister gave a helpful chronology of the row and of efforts to mediate in it in her contribution today. Essentially there are three factions involved in this dispute: the GRA, which is the original organisation — the establishment; the Garda Federation, established in July 1994 in the aftermath of the GRA conference being abandoned as a result of failure to agree on standing orders; and the 1,000 members of the Louth-Meath, Cavan-Monaghan, Cork West and Tipperary divisions of the GRA, who are still members of that organisation but who have stopped sending members to meetings of the Central Executive Committee of the GRA.
Attempts by the Garda Commissioner, the Minister and her predecessor, Kieran Mulvey, in a personal capacity, and John Horgan have failed to resolve the dispute. As recently as 22 May federation members were quoted as saying they would never go back to the GRA.
The legislative solution proposed by the Minister is to amend section 13 (1) of the Garda Síochána Act, 1924 to provide that each rank of the Garda Síochána shall have only one representative association. Previously, more than one association was allowed. The sting in only allowing one association is that under subsection (3), a member of the Garda Síochána cannot belong to an association which has as its aim the influence of pay, pensions and conditions other than one established under section 13 of the 1924 Act.
Section 2 of this Bill provides that the association established for the rank of garda "... shall have the support of such majority of the membership of that rank as satisfies the Minister that, in matters which concern that rank as a whole, the association can speak and make agreements on behalf of that rank as a whole". If an association established for the rank of garda in accordance with section 13 (1) of the 1924 Act does not comply with the above requirement or any other requirement of the Garda Síochána Acts, 1923-96 or regulations thereunder, the Minister may give the association 30 days' notice and, at the end of 30 days, make an order to the effect that the association is no longer an association established under section 13 (1) of the 1924 Act. This will have the consequences that it will be unlawful for a garda to be a member of the association.
Three issues arise from this approach. How will the Minister satisfy herself that an association complies with section 2? What will a ministerial order achieve? There are other aspects which have been mooted by one side of the dispute, the federation, in regard to the possible unconstitutionality of the Act. On balance I believe the Act is probably constitutional in the overall interests of having one Garda representative association.
Section 2 does not give a precise formula for the type of majority required. For example, is it to be 50 per cent plus one or 75 per cent? It states that it should be "such majority ... as satisfies the Minister that, in matters which concern the rank as a whole, the association can speak and make agreements on behalf of that rank as a whole".
As a matter of plain English, it might be argued that the only association which can represent the rank of garda as a whole is one which has the support of every garda. What counts here, however, is the "satisfaction" of the Minister. There are no indications in the Act as to how the Minister is to be satisfied on that point. She might indicate, when replying to the debate, the criterion she proposes to use.
Presumably the aim of the Act is to provide a means by which the GRA, under that or some other name, will become the association recognised by the Minister. Given that the sides are currently hopelessly irreconciled, however, it is probable that any decision by the Minister that the GRA represents the rank of garda as a whole could be challenged in the courts by the disaffected members unless they have been persuaded otherwise by that time.
What will a ministerial order achieve? If the Minister is not satisfied that an association established under section 13 (1) can speak for and make agreements for the rank of garda as a whole, she can serve a 30 day notice. If, at the end of 30 days, she remains unsatisfied on this point she can then make an order to the effect that the association is no longer an association established under section 13 (1) of the 1924 Act. Strictly speaking, the only consequence of that is that it will be unlawful for a garda to be a member of that association.
What can the Minister do in such circumstances? Will members who are not members of an association established under section 13 (1) of the 1924 Act be disciplined or expelled from the Garda Síochána? Will the leaders of such an association be charged with the rather archaic offence under section 14 (1) of the 1924 Act of causing "disaffection amongst the members of the Garda Síochána" or inducing them to commit a breach of discipline with a punishment of up to two years imprisonment and/or a fine?
Presumably the Minister hopes that when she makes an order, a new association will be formed which will have the support of all sides but there is no guarantee that such a new association will be able to satisfy the Minister that it can speak for the rank of garda as a whole. Ultimately there may not be any association representing the rank of garda and all gardaí may be acting unlawfully by continuing to be members of their various associations. One of the major problems with the legislation — the Minister adverted to this in her contribution — is that it does nothing to address the situation where there is no association established under section 13 (1) to represent the rank of garda.
Some members of the Garda Federation are of the opinion that there are constitutional problems with the Bill and have suggested they will challenge the constitutional validity of the Bill if it is passed. The relevant Article of the Constitution is Article 40.6.1. (iii) by which the State guarantees liberty for the exercise of the right to form associations and unions. The exercise of that right, however, is made subject to public order, public morality and public interest. It is on those bases I believe the Bill could survive a constitutional challenge.
In the 1989 case of Aughey v. Ireland, detectives challenged the validity of the current version of section 3 (1) of the 1924 Act. The Supreme Court ruled that if the areas of pay, pensions or conditions of service "became the subject of multi-union or multiassociation agitation or industrial action by members of the Garda Síochána, it would be a matter of grave public concern and public interest, particularly because of the fact that the Garda Síochána is a unitary national police force. In the light of these considerations, it cannot be said that [the section] is an unreasonable or disproportionate regulation of the right... to form associations and unions". Accordingly, I believe there is sufficient weight in terms of precedent for the Bill to survive a constitutional challenge by disaffected members.
The following are a summary of my questions. What criteria will the Minister use to satisfy herself that an association meets the requirements of section 2? What will she do about gardaí who are unlawfully members of an organisation not established under section 13 (1) of the 1924 Act as amended by the Bill? If no association meets the requirements of section 2, what does she propose to do?
The Minister indicated today that she is open to whatever flexibility might be appropriate even at this late stage, and I welcome that. With regard to the imbalance of the CEC and paragraph 6 of the Schedule, she stated that 26 members are elected from the divisional committees and the current system did not take the large difference in the number of gardaí in one division compared to another into consideration. This is particularly acute in the DMA, which, together with Garda Headquarters and the special detective units, represents 48 per cent of garda rank but has only seven representatives on the 26 member CEC. The proposal in this Bill goes a long way to alleviate that democratic problem which was a bone of contention between the two sides. It is proposed to eliminate the representation of the training college and to increase by four the representation from the four larger divisions in Dublin. In the end, the membership of the CEC will increase to 30 and 11 members will represent the DMA.
The concept of weighted voting, which was also advocated by the Garda Federation and had the support of the Minister in principle earlier this year, has been dropped and that is still a bone of contention. However, the Minister has gone a long way to meet and respond to the difficulties on representation and the unfairness to the larger divisions in the DMA.
In the Schedule the Minister introduced changes to bring about greater democracy and fairness to the structures and procedures of the association. The proposals purport to allow the annual conference to have more of a say and be more in touch with the elected officers.
I welcome the Minister's indication today that she will consider an amendment relating to automatically entitling those who withdrew from the GRA since January 1994 to be deemed members and to participate in the elections. The difficulty is: what will happen in the interim between now and March when the elections will be held? I note this issue has not been resolved and that is where the trouble will lie immediately following the passage of this Bill. Perhaps between now and Committee Stage, this Bill, the fact that we are debating it, that matters are moving and the Minister is taking this initiative will act as a conduit to bring the people together on this issue.
The Minister outlined today the series of mediations and arbitrations which have already gone into this dispute to no avail. Indeed, the two opposing groups have not had a face to face meeting since January of this year. That indicates they have not really been engaging in meaningful negotiations.
