Amendment No. 1 is out of order.
Criminal Justice (Joint Investigation Teams) Bill 2003 [Seanad]: Report and Final Stages.
Amendment No. 1 not moved.
Amendment No. 2 is consequential on amendment No. 3 and both are to be taken together.
I move amendment No. 2:
In page 4, line 40, to delete "Subject to subsection (2),”.
The purpose of amendments Nos. 2 and 3 is to have consistency within the Act. According to the first amendment, the competent authority is deemed to be the Garda Commissioner. We are changing that in the second amendment so that the competent authority there is also the Garda Commissioner. It seems in the first instance that the Garda Commissioner is given power in one area but that the Minister holds power in the second area for himself. At the very least this should be consistent and should apply to one or the other. That consistency should apply to the Garda Commissioner who should have the power in both instances rather than the Minister. As we also saw in the Garda Bill, the Minister seems anxious to cede quite a bit of power in his own direction, although the current Minister will not always be in that position. It would be better if decisions rested with the Garda Commissioner.
Section 2 names the competent Irish authorities for the purposes of the framework decision. Section 2(1) provides that the Garda Commissioner will be the competent authority for the State, but section 2(2) qualifies this by providing that where the competent authority of another member state requires that the request for establishment of a joint investigation team should be made or received by a judicial authority the Minister and not the Garda Commissioner will be the competent authority in dealing with such requests. The amendment proposed by the Deputy would result in the Commissioner being the sole competent authority for the purposes of the Bill. The responsibility for setting up and operating the joint teams will rest with the Garda Commissioner.
Deputies appear to have a difficulty in understanding why the Minister is designated as a competent authority. As was explained when this matter arose on Committee Stage and during the passage of the Bill through the other House, other member states may require a judicial authority rather than chiefs of police as competent authorities in accordance with either their legislative or constitutional arrangements. Those member states will not send or accept requests from the Garda Commissioner. For that reason the Minister must be designated a competent authority by the Bill if the framework decision is to achieve its objective of combating cross-border and international crime.
In practice, this does not mean the Minister will be involved in setting up and operating joint teams. His only role will be to receive the request and transmit it to the Garda Commissioner who will decide if it is necessary to set up a team. The Minister will then notify the relevant requesting authority of the Commissioner's decision. If a team is to be established in the State, arrangements for the establishment and operation of the team will be put in place by the Garda Commissioner and the Minister will have no further involvement.
By providing for the Minister to be a competent authority, we are merely ensuring that we can do business with those member states which will not recognise the Garda Commissioner as a competent authority for the purpose of the framework decision. I therefore see no reason to accept this amendment.
The Minister of State said that other member states may or may not accept the Commissioner as a competent authority. I accept what he has said but I question the fact that we must take on trust that the Minister for Justice, Equality and Law Reform will pass a request on to the Garda Commissioner. If that is all his role involves, I do not see why the Garda Commissioner cannot do that in the first place. That other member states may accept him also implies that they may not accept him as a competent authority and they can decide whether to go to the Garda Commissioner. I assume the Commissioner's role is one defined by law in Ireland and it should be up to Ireland to decide who to designate for other countries to deal with. I see no difficulty in that person being the Commissioner rather than the Minister.
For the information of the House, the competent authority in Austria is the federal Minister of the Interior, in Italy it is the Minister for Justice and in Portugal it is the Attorney General. There is no consensus throughout Europe and the importance of the Bill is that it allows cross-border investigations. When an urgent investigation is needed and it is necessary to set up a joint team, we do not want a legal situation where someone queries the competence of the Garda Commissioner. This is the way it must be to be sure.
What is the position in the other 21 member states? I am not trying to be difficult but who is the competent authority in those countries? Are there member states where the competent authority is the equivalent of the Garda Commissioner?
Deputies are not entitled to contribute again.
It is mixed. There are different situations but I have indicated there are three countries, Austria, Italy and Portugal, where the Minister is the competent authority. In the other member states there is a mixture of attorneys general, heads of police or whatever.
Question, "That the words proposed to be deleted stand", put and declared carried.
Amendment declared lost.
Amendment No. 3 not moved.
Amendment No. 4 is consequential on amendment No. 9 and amendments Nos. 7 and 10 are related. Amendments Nos. 4, 7, 9 and 10 are to be taken together.
I move amendment No. 4:
In page 6, after line 49, to insert the following:
"(c) the proposed members of the joint investigation team satisfy the human rights criteria under section 6(5) (b) and (c), and the Competent Authority has received confirmation from the competent authority or authorities in the Member State or States concerned as required under section 8(2).”.
These amendments relate to the same issue, that is, the need for human rights screening for members of foreign police forces who will operate in the State as members of joint investigation teams. In its entirety, the Bill is part of a series of so-called EU anti-terrorism roadmap measures which would allow members of foreign police forces and, possibly, intelligence agencies to operate in this State following permission from the Garda Commissioner.
I am not opposed in principle to inter-jurisdictional police co-operation in investigations of serious crime with cross-border dimensions, limited where necessary and where there are appropriate safeguards and accountability mechanisms in place. We strongly support effective action against cross-border organised crime, including trafficking in human beings and drugs, especially where such actions strike the correct balance between the need and right of communities and individuals to be safe from predation and the civil and human rights of individuals.
The Bill does not fit the criteria I have outlined, especially when it comes to human rights safeguards and accountability mechanisms. Whatever about the elements of the Bill I support, it would be irresponsible of us to allow the operation of other forces in this jurisdiction in the absence of a properly established best practice complaints investigations mechanism in the form of an independent Garda ombudsman office along the lines of the Patten model and a properly established best practice civilian oversight mechanism in the form of an independent civilian policing board as our party and others have suggested, including non-governmental organisations which deal with these issues.
The Bill should specifically outline conditions and that is why amendments Nos. 4, 7, 9 and 10 outline conditions under which it would be prohibited to bring other police forces or individual members of other police forces on to a joint investigation team operating in this State. Fundamentally, this legislation must not proceed in the absence of adequate safeguards and, in particular, until such time as the Human Rights Commission is convinced of the adequacy of the Bill's provisions and the State's mechanism for police accountability.
On that point, it was not acceptable for the Minister to refuse to seek assurance from the Human Rights Commission that it was convinced of the adequacy of the human rights safeguards in this legislation before Committee Stage, as I requested. That was a pity because we would have got a better line and my amendments might have been better informed if the Minister had accepted the Human Rights Commission's view and sought assurance from it that it was happy with the safeguards in the legislation. To the best of my knowledge, there has been no assurance from the Human Rights Commission and I do not believe the Minister sought one. That is wrong because the Human Rights Commission was set up, in particular, to view legislation and to point out where it is inadequate and where it would impact or impinge on people's human rights. This is legislation in respect of which that should have been done. In cases where legislation impinges on or interferes with people's human rights, we should be fully informed of it and take whatever steps are necessary to amend it.
We are talking about police co-operation. It is crucial that we ensure people have confidence in the officers serving them, and that includes all officers, whether members of the Garda Síochána or police officers from other jurisdictions. Officers may come from a different policing culture, including a more aggressive and combative one than the Garda Síochána. Despite incidents of abuse and aggression on the part of members of the Garda Síochána, in general the culture of the force has not been a combative or aggressive one. Members of the Garda Síochána are now being given human rights training and we should demand the same of police officers coming here from abroad. Human rights qualifications and misconduct screening must be essential prerequisites for members of joint investigation teams. We cannot have a situation where members of other police forces who have been found guilty or who are under investigation for misconduct or human rights breaches come to Ireland. That should be the minimum we accept.
The Minister will no doubt argue that he does not have any concerns about the police forces of other EU member states and that my amendments are unnecessary. I remind the House of Amnesty International's documented police ill-treatment, excessive use of force and torture as well as impunity for such misconduct in 16 EU member states, including Austria, Belgium, Britain, the Czech Republic, Denmark, Estonia, France, Greece, Germany, Hungary, Ireland, Italy, Portugal, Spain, Slovakia and Sweden. Some of those documented cases have resulted in death, so there is cause for concern and we cannot give a free hand to police forces. We need to put in place these safeguards.
If Members wish, I can list the recent incidents in EU states. It is not true to say EU police forces are generally human rights compliant. That is the source of my concern about the absence of screening mechanisms to prevent officers from other states who may be engaged in such misconduct from serving in this State or even members of the Garda Síochána who are the subject of such inquiries from serving abroad.
In January of this year, Amnesty International urged the Irish Presidency of the EU to ensure that any arrangements for increased co-operation among EU police forces give due consideration to international human rights standards and best practice, adequate mechanisms of accountability and the provision for training so that law enforcement officers are equipped to ensure the full protection of human rights. The provisions of amendments Nos. 4, 7, 9 and 10 and amendments No. 17, which we are not discussing at present but which are related, should be included in the legislation.
Those are the main concerns and I hope the Minister of State accepts the amendments. The Minister and the junior Minister have not been able to attend as I heard they are on EU duties. If that is the case, they would have known in advance and this Bill should be rescheduled for another occasion. This is the second Bill from the justice portfolio we are discussing today but neither the Minister nor the junior Minister is present. It is not the first time this has happened and it is scandalous. This Bill should have been rescheduled so a Minister responsible for this major change to our policing arrangements and the EU is here to discuss it.
The Minister is on EU duty. There is a target date at EU level to implement this legislation across the European Union. The House and the Minister are anxious to complete it by the end of this summer term. I hear much criticism from the Opposition about delayed legislation but it takes quite a long time to prepare. We are striving to get this legislation through——
It could have been taken next Tuesday or Wednesday.
I guarantee the Deputy that next Tuesday and Wednesday are chock-a-block with legislation to be dealt with by the House, as is the schedule up to 10 p.m. tonight. I assure the Deputy I will reflect the Minister's position on this issue.
I propose to respond to amendments Nos. 4, 7, 9 and 10 together. The Deputy also referred to amendment No. 17 which I will deal with separately. The purpose of the amendments tabled by Deputy Ó Snodaigh is to ensure no agreement is reached to establish a joint investigation team unless there is confirmation that persons appointed under section 6(2)(c) have: completed human rights training in this State or in their own member state; are not subject to investigation or inquiry; and that teams be terminated when credible allegations of misconduct arise.
Persons appointed under section 6(2)(c) could include, for example, experts in forensic science, fingerprinting, computer experts, statisticians or research assistants, depending on the nature of the investigation, or representatives of authorities other than the member states of the EU. Persons appointed to a team in this context shall, in accordance with section 7(1)(a), perform their functions in accordance with the law of the State. In accordance with section 7(1)(b), they will operate under the control and general superintendence of the Garda Commissioner. Section 7(2)(b) provides that members of a team will perform their functions under the direction and control of the team leader who will be appointed by the Garda Commissioner. Persons who are authorised to participate in an investigation in this way will act primarily in a supportive role and will not be permitted to take investigative measures.
The Garda Síochána is developing a strategy on human rights education training which will set out the vision for human rights training for all gardaí. The proposed strategy envisaged that human rights training will be imparted to new trainees and current serving members as part of an in-service training module following further developments of the human rights training programme. At present the Garda Síochána provide human rights and diversity training for trainee gardaí. A two-day inspectors and sergeants development course entitled, human rights, anti-racism and ethics, aims to provide a basic introduction to international human rights standards.
To further enhance and support human rights training, a generic human rights training course for Garda teachers and trainers has been developed and was delivered in 2003 to 132 teacher trainers, and this course is continuing this year. The aim of the course is to facilitate the integration of human rights concerns, norms, principles and ethics into all relevant aspects of training courses. In accordance with best practice, the course was delivered by internal and external experts. It also proposed to involve staff from the Garda human rights office and the racial and intercultural office as well as Amnesty International and the University of Ulster.
In the event that members of the PSNI are appointed to a team, the Deputy should be aware that all PSNI officers have received training in the application of the Human Rights Act 1998. More recently, all PSNI officers have been trained in the code of ethics, which has been drafted to reflect the ECHR, relevant United Nations standards and best practice in ethical policing in the UK and other countries. All PSNI officers are required by law to carry out their duties in accordance with the code of ethics published by the Northern Ireland Policing Board. Human rights are fully integrated in all police recruiting training.
In the Garda Síochána Bill, which was published in February of this year, the key functions of the force are now to be defined by statute. Section 7(4) provides that in exercising these functions, the Garda Síochána will be obliged to have regard to the importance of upholding human rights in the performance of their duties. In addition, a revised form of attestation, provided for in section 15, will require new members of the force to declare, inter alia, that they will have regard for human rights in carrying out their duties.
Furthermore, the importance of human rights is strengthened by the inclusion of a provision for the establishment of a code of ethics which will be incorporated into a disciplinary framework for the Garda Síochána. The purpose of the code of ethics is to lay down standards of conduct and practice for police officers and to make them aware of their obligations under the European Convention on Human Rights. On the basis of the facts as outlined, the Deputy will note that the Garda Síochána is well aware of human rights issues. Any persons appointed to joint teams will operate under its control.
Section 6(6)(b) empowers the Minister, if requested by the Commissioner, to remove any team member appointed under section 6(2). This is any non-Garda member. Removal for reasons of misconduct would fall into the terms of this provision. It is not appropriate that a bureaucratic mechanism of assessment of personnel be established in advance of the establishment of joint teams. After all, we must allow chiefs of police the flexibility to assign and rotate or replace personnel who will progress an investigation in the best manner possible. They will not wish to detract from combating and detecting crime by appointing personnel who are likely to impact adversely on this role.
For the reasons outlined, I do not propose to accept this amendment.
I did not mention the PSNI in this instance, although I have referred to it previously when we debated legislation dealing with the joint operations with the PSNI. I acknowledged the work of the gardaí in the human rights field in recent times and welcomed the integration of a code of ethics. That is provided in respect of the Garda Síochána but not in respect of police forces which will send representatives to this country as part of these joint investigation teams.
As the Minister of State mentioned, there is a power under section 6(6)(b) to remove a member of such a team. The purpose of these amendments is to ensure that in the first instance such officers from other jurisdictions do not become part of a joint investigation team once there is any type of doubt about their competence in operating here. The competence in question in these amendments is whether the persons concerned have been involved in human rights abuse or any type of abuse of suspects or those who are charged.
I listed those countries where there have been incidents of abuse and perhaps it is worth giving some examples. In Belgium, police ill-treatment was often accompanied by racist abuse and a standing police monitoring committee reported a worrying increase in complaints against the Belgian police related to racism and physical violence. In Estonia, the UN Committee Against Torture reported that ill-treatment of detainees by the Estonian police persists, albeit on a lesser scale than previously. In France, instances of police brutality frequently involve foreign nationals or French nationals of foreign regions. German police have ill-treated and used excessive force against detainees. Greek police frequently ill-treat detainees. In Hungary, police ill-treatment, particularly of Roma people, continues to be reported. Those are only brief samples of instances on which I have information. The position is the same in Spain.
We are trying to ensure in these amendments that those who are under investigation in their own countries, or in respect of whom there have been findings of ill-treatment or abuse, cannot be sent here by the police authorities in those countries to carry out the same types or other types of activities here. They are not welcome. These amendments seek to ensure that only those who are willing to comply with these standards can take part in joint operations in this jurisdiction. We need to ensure that Garda human rights training here sets the ball rolling for the rest of the European Union and that other police forces take on board the need for such human rights training. If they are to operate here, they will need to have undergone some human rights training. That should be a minimum requirement. We should not accept anything less.
Amendment put and declared lost.
I move amendment No. 5:
In page 7, lines 5 to 7, to delete all words from and including "if" in line 5 down to and including "Authority" in line 7 and substitute the following:
"for such periods not exceeding its duration since establishment, or if the circumstances so require, for such periods as may be agreed by the Competent Authority in consultation with the Minister".
The purpose of this amendment is to ensure that any extensions of time given should not exceed the original length of time for which the investigation is due to operate. I can understand that work may not be completed within the time frame set, but it might not be the best decision to give indefinite time extensions and the work involved could continue on for longer than envisaged. We know from our experience of the current tribunals that if timetables are not set, processes can continue indefinitely with no end in sight. If the approach proposed was taken, the team could seek a further extension if necessary, but at least there would be some controls in place over the length of time it is envisaged these investigations would take. That is the reason we tabled this amendment.
The terms of this amendment have previously been raised in both Houses and the arguments made in rejecting it then still apply. Section 5, provides that a joint investigation team will be established for specific purposes and a limited period, and that where it is necessary to do so, that period may be extended for an additional period or additional periods as are agreed by the competent authorities concerned. The proposed amendment allows the period of time for which a joint team is to operate to be extended but sets a limit on that extension to be a period "not exceeding its duration since establishment". In other words, a joint investigation team, which has been established for four months, should only be extended for an additional four month period unless circumstances require a different arrangement to apply. It is impossible to see how this could work in practice. As the investigation progresses it will only become clear how much time is required to complete the investigation. When it becomes evident that more time is needed to progress the investigation, the written agreement provided for in section 8, drawn up between the member states, will have to be amended. It would not make much sense to have to amend an agreement say three times over the course of the subsequent year when it would have been quite clear from the outset that a further period of a year was required to complete the investigation. Where no further benefit is likely to accrue from the continued operation of the team, the Commissioner will terminate the team in accordance with section 5(7)(b). Where the purposes for which the team was established have been achieved in advance of the time period allocated, the Commissioner will also terminate the team in accordance with section 5 (7)(a). However, where an investigation has not been completed, the time period for which it is to operate will have to be extended. To do so in the limited manner proposed by the Deputy does not make sense. I am sure other member states involved in the establishment of teams would also consider it a strange way of doing business.
Deputies fear that the provision, as drafted, will not result in the most effective use of manpower and resources and will impose an unnecessary financial burden on the State. As the Minister has previously stated, joint investigation teams are not a new phenomenon. They have been a feature of international co-operation on an informal basis for many years. It is not expected that the cost of operating joint teams arising from this Bill will differ in any significant way from the costs that have accrued in the past.
While enactment of this legislation may lead to some increase in co-operation between the Garda Síochána and foreign law enforcement authorities, it is unlikely to have significant resource implications, as existing co-operation arrangements will continue to apply, albeit in a more structured format. The teams will only be set up in exceptional circumstances to investigate cross-border crime, especially organised crime.
As the person answerable for the strategic goal in the Garda policing plan concerning the management of finances to achieve best value for money, the Garda Commissioner will take into consideration the cost of, benefit to, and possible burden on existing resources when deciding whether or not to take part in a team. There must be an element of flexibility to cater for the different scenarios and rapid responses which will be required.
The provisions in section 7 of the Bill for termination of the team when its purposes have been achieved, or when there is no further benefit to be gained from its continued operation, together with the provision to amend the agreement when the period of a team is to be extended, are sufficient safeguards to ensure teams do not continue to operate for unnecessarily long or ineffective periods.
For these reasons I do not propose to accept this amendment.
The Minister of State's briefing note has made the argument for us, in a way. He is not accepting the amendment because he says it does not make sense to extend the period for only a limited time, but one must ask why the period is being limited in the first place. Clearly, this amendment will not be accepted by the Government but it would be a better way of doing things if it were. It is not even that limiting because it still gives the power "if the circumstances so require, for such periods as may be agreed by the competent authority in consultation with the Minister". The amendment would add commonsense to the Bill's provisions.
Question, "That the words proposed to be deleted stand", put and declared carried.
Amendment declared lost.
Amendment No. 6 arises out of committee proceedings.
I move amendment No. 6:
In page 7, between lines 8 and 9, to insert the following:
"(2) Each joint investigation to be established under this Act shall be costed by the Competent Authority prior to establishment.".
In many instances, drug seizure operations are already costed prior to being sanctioned. That is a good precedent, which we should consider applying in this legislation. We are all aware that there is a cost issue regarding how resources for the Garda Síochána are allocated and spent. We should be in a position to cost operations in so far as possible. It is not always that simple to achieve, but it is worth trying in order to ensure that when operations are sanctioned we will be able to ascertain the costs involved before they proceed.
This amendment was previously tabled in both Houses. Joint investigation teams have already been established in the State on an informal basis. The costs associated with them arising from the implementation of this legislation are not expected to be over and above those that have accrued in the past. A total of 12 joint investigation teams have been set up in the State over the past six years. It is, therefore, not as if this is likely to be an everyday event. Four of these teams were in respect of subversive, terrorist-related activity and the remaining eight were in respect of serious organised crime.
The Garda Commissioner provides the initiative in deciding to set up a joint investigation team in this State or become involved in a team in another state. He will calculate costs to ensure that taxpayers' money is being spent in an efficient and cost-effective manner.
The Garda policing plan for 2004 lists ten strategic goals, one of which is financial management and accountability. It would not be possible to estimate with any degree of accuracy the cost of a joint investigation team in advance of its establishment, as the costs will vary greatly and will be determined by the nature of the investigation, the type of offence or suspected offence to be investigated, the size of the team, the length of the investigation and the resources available to the team.
To include a condition in legislation that each joint investigation team should be costed in advance could delay a rapid response to requests and hamper the course of the investigation, thereby defeating the purpose of establishing the team. While it may be good management practice to be aware of the financial implications of an investigation and to plan the most effective use of resources successfully to pursue that investigation, it does not make any sense to compromise the safety of citizens by having a costing exercise as a mandatory requirement before proceeding, or to have it as a determining factor in deciding whether to proceed.
I am aware of Deputies' concerns that the most effective use be made of resources but, as indicated in response to previous amendments, there are safeguards in place to terminate teams where the objective has been achieved or where there is no benefit to accrue from the continuation of the team.
There is the further issue that I do not have the power to compel other member states of the EU to cost joint investigation teams prior to establishment, as this amendment seeks to do. For these reasons I do not propose to accept this amendment.
Amendment, by leave, withdrawn.
Amendment No. 7 arises out of committee proceedings and has already been discussed with amendment No. 4.
I move amendment No. 7:
In page 8, between lines 23 and 24, to insert the following:
"(c) credible allegations of misconduct on the part of the joint investigation team arise.”.
Amendment put.
Deputies
Vótáil.
Will the Deputies claiming a division please rise?
Deputies Crowe, Finian McGrath, Morgan, Ó Caoláin and Ó Snodaigh rose.
As fewer than ten Members have risen I declare the amendment lost. In accordance with Standing Order 68 the names of the Deputies dissenting will be recorded in the Journal of the Proceedings of the Dáil.
Amendment declared lost.
I move amendment No. 8:
In page 8, between lines 39 and 40, to insert the following:
"(3) Where a person is appointed by the Minister to be a member of a joint investigation team pursuant to subsection (2)(c), he or she shall be deemed to be an officer of the Minister for the duration of his or her membership of the team.”.
Amendment No. 8 seeks to amend section 6 which deals with membership and terms and conditions of membership of joint investigation teams. Section 6(1)(c) allows persons from the private sector, such as computer experts or statisticians, to be appointed to a joint investigation committee. A serious question arises about the accountability of such persons for their conduct while members of the team. The amendment would make the Minister for Justice, Equality and Law Reform accountable for the conduct of such persons. In some ways this section is highly inappropriate. To give police-style powers or functions, one should at least be a public official of some kind, otherwise where is the accountability? It could suggest CIA style freelance operators, although this is not what the Minister of State has in mind.
This matter was previously raised on Committee Stage and in the other House. As I indicated then, the purpose of the provision in section 6(2)(c) is to enable the Minister, following consultation with relevant parties, to appoint any other person who does not fit into the categories in section 6(2)(a) or (b) and who, in his or her opinion, has experience relevant to the investigation. The provision will ensure that whatever expertise or advice is needed by a team is available. The Minister has the power to look beyond the Civil Service to provide this experience and advice. The EU framework decision makes specific provision for the inclusion of additional expertise from appropriate persons. These can include such personnel as fingerprints experts, systems analysts, computer programmers, accountants, statisticians or any other persons who, in the opinion of the Ministers, have experience or expertise relevant to the investigation concerned.
While in the majority of cases the necessary expertise will be found among the members of the Garda Síochána and the officers of Ministers and the Revenue Commissioners I expect there will be occasions when a joint investigation team may be established which will require something above and beyond the necessary expertise already available. Such persons, if required, would likely be appointed on a once off basis and may only be involved in a particular aspect for a particular period of the investigation and could, for example, be from the private sector area. In these circumstances, it would not be appropriate, as the amendment proposes, to confer them with Civil Service status and conditions.
The Deputy appears to be concerned about the standard of behaviour and accountability of such persons and has sought that they be appointed as officers of the Minister. He is concerned that different codes of conduct will apply as members work side by side on an investigation. I assure the Deputy there are a number of provisions which will ensure that team members working on an investigation will be subject to standards of behaviour and a level of accountability.
Section 6(5) provides that such persons will be subject to such terms and conditions as the Minister may determine in the context of this Bill. Section 7(1) provides that where a joint investigation team, or part of it, is operating in the State, it will perform its functions in accordance with the law of the State. Team members will also operate under the control and general superintendence of the commissioner who will make the necessary organisational arrangements for it, including appointment of a team leader.
Section 7(2) provides that the team leader will manage the operations of the team in accordance with the Act. Team members will perform their functions under the direction and control of the team leader. Persons appointed to a team, who are not members of the public service, would, in all likelihood, only be required on a part-time basis for a short period to provide expertise on a particular aspect of the investigation, for example, as a computer expert. It would not make sense, as the Deputy proposes, to make such a person an officer of the Minister. If this was to happen, a contract of employment would have to be negotiated. Provision would have to be made for issues such as pay, tenure, hours of attendance, annual leave, sick leave and superannuation. Such terms would have to be considered having regard to possible equivalent grades in the civil or public service. This process could prove time consuming and would only serve to delay the investigation and prosecution of cross-Border crime which goes against the thrust of the Bill.
For the reasons outlined I do not propose to accept the amendment.
The Minister of State's reply satisfies my concerns to a certain extent. At the end of the day he has not adequately addressed the issue of accountability. While it is highly unlikely that those who would be taken into an investigation team would indulge in any kind of improper behaviour, there is no accountability for these people. While it is unlikely they would act in an improper or illegal fashion, is there anything the Minister can say that would satisfy that concern?
I am satisfied we have covered every eventuality with regard to accountability. Those operating either within the law of the State or under the team leader will provide such coverage.
That still does not answer the question of who is finally accountable in terms of the unlikely, but possible, event that a civilian member of an investigation team, in another State, would act in an improper fashion.
Amendment put and declared lost.
I move amendment No. 9:
In page 9, between lines 22 and 23, to insert the following:
"(b) have completed approved human rights training within the State or within their own Member State,
(c) shall not be the subject of an investigation or inquiry, whether internal or otherwise, and”.
Amendment put and declared lost.
I move amendmentNo. 10:
In page 12, between lines 3 and 4, to insert the following:
"(2) Agreement by the Competent Authority to joint investigation team membership as specified in section 8(1)(d) shall be subject to confirmation that:
(a) all the members proposed have completed approved human rights training within their own Member State;
(b) none of the members proposed are the subject of an investigation or an inquiry, whether internal or otherwise.
(3) The Competent Authority shall withhold agreement to the inclusion of any member proposed for a joint investigation team under section 8(1)(d) if the individual does not fulfil the criteria set out in subsection 2)(a) and (b) above.”.
Amendment put and declared lost.
I move amendmentNo. 11:
In page 12, to delete lines 34 to 37.
The purpose of this amendment is to narrow the scope of the Bill to co-operation in joint investigation teams with members of police forces of other EU member states and officers of other EU institutions, such as Europol and Eurojust only as specified in paragraphs (a) and (c). Paragraph (d) allows for police and other officers, designated by any third state outside the EU by ministerial order. While I would not rule out the possibility of co-operating with police forces outside the EU in a joint investigation team, the nature of Ireland’s relationship with non-EU states is not the same as other countries within the EU. Therefore, it is not appropriate that we treat the police forces of other non-EU states in the same manner.
For example, the Bill is silent on the civil liability issue with respect to officers of non-member states. It is ambiguous with respect to the criminal liability of officers of non-member states. For example, are they covered by section 12(b) and, if not, what are the implications? Does it mean they cannot be held accountable by a Garda ombudsman, as we would prefer, or a Garda ombudsman commission, as the Minister of State would have it? What will happen in the event of misconduct by members or officers of non-EU member state forces? Will the sharing and use of information provisions in section 11 also apply to authorities of non-member states? So far as I can see, the Bill is silent on these issues. There is ambiguity. As I understand it, the Bill would allow for members of the Israeli security forces to operate in a joint investigation team with the Garda on Irish soil investigating members of the Irish Palestinian population, if there was such a call. If, in the course of that investigation, there was serious misconduct by the Israeli security force members resulting in injury, death or other damage or loss, how would it be dealt with? Would the offending members of the Israeli security force be held accountable for their actions in this State? If the Garda Síochána is to co-operate in joint investigation teams with non-EU states, I would prefer that it be dealt with by different legislation. This Bill provides for joint investigation teams from European Union member states. To involve non-EU countries in the investigation teams is a separate issue with potentially serious ramifications for human rights.
The majority of EU member states comply with human rights procedures and records. While there are abuses, which I listed and Amnesty International has a long list, the same is not true of countries outside the EU which are not bound by various EU directives on human rights compliance. We should not extend the legislation beyond the boundaries of the European Union.
I support the amendment tabled by Deputy Ó Snodaigh. He raised a number of important issues on joint investigation teams and the police forces in member states. The reality is that not all police forces instil public confidence, for example, the record of the British police in carrying out investigations in the North and policing generally. Serious international incidents have arisen in the past ten to 15 years, especially in Northern Ireland where there were question marks on the links between some elements of the police force with paramilitaries, particularly loyalist paramilitaries. Many have reservations about the way the Pat Finucane case was handled, for example, and the connection between the police, the so-called security forces and the people directly involved in that death. The security services in France were involved in the bombing of the Rainbow Warrior. We should demand vigilance and professional investigations from non-EU states, as well as from the EU member states.
I support the point made by Deputy Ó Snodaigh on the Israeli police. I would not have great confidence in them and the Israeli security services based on their past activities, especially on policing and investigation.
These are proper issues to raise. We accept that most member states are moving in the right direction on respect for the human rights of citizens in the European Union, but some are still a long way behind and must get their act together. I strongly support this amendment.
Section 9(1)(d) provides that participants in joint investigation teams can be drawn from authorities of countries or territories other than member states of the European Union, which have been designated by the Minister. The effect of the proposed amendment would be that the competent authorities would not have the option of seeking assistance from states outside the EU when in certain circumstances, special advice or expertise may be required for an investigation. I admire the two Deputies for coming up with the example of the Israeli police. I would not expect such a situation to arise, but perhaps it could and it is important that we would be able to cover it.
Article 1.12 of the framework decision provides as follows:
To the extent of the laws of the Member States concerned or the provisions of any legal instrument applicable between them permit, arrangements may be agreed for persons other than representatives of the competent authorities of the Member States setting up the joint investigation team to take part in the activities of the team.
The framework decision on which this Bill is based has been taken from the European Convention on Mutual Assistance in Criminal Matters. Paragraph 12 of the explanatory memorandum of that convention states that this provision paves the way for member states which have established the joint investigation team to agree that persons who are not representatives of their competent authorities can take part in the activities of the team. What the drafters of the convention had in mind was that additional assistance and expertise could be provided to a joint investigation team by appropriate persons from the states or international organisations. This will allow a degree of flexibility in the formation of teams and permit additional assistance and expertise to be provided by appropriate persons from other states.
While I know that in the majority of cases, the necessary expertise will be found among the members of the various police forces, and EU bodies such as Interpol or Eurojust, I expect there will be occasions when a joint investigation team may be established which will require something over and above the necessary expertise available in that context. A possible example of an investigation that would require assistance from a state other than one of the member states would be an investigation into the trafficking of females for sexual exploitation purposes where it is known that its origins are outside the EU. In such a case, it may be necessary to seek assistance from an appropriate person or authority from that country. Such a person, if required, would be likely to be appointed on a once-off basis and may only be involved in a particular aspect for a certain period of the investigation.
We are obliged to maintain this provision to meet the criteria set out in Article 1.12 of the framework decision. The provision will mean there is no bar to proceeding with a criminal investigation which has cross-border links, which is the purpose of the Bill. I remind the Deputies that foreign police operating here will not be leading teams, which will be lead by a Garda Síochána of the rank of superintendent and will be in support of the Garda in the investigations. For these reasons, I reject the amendments.
I did not say we should not have joint investigation teams with countries outside the European Union but that it should be dealt with in separate legislation with rules and guidelines set down. What we are dealing with is one of the measures under the EU anti-terrorism roadmap. The legislation is restrictive in how we can amend or adopt it, but I do not think we cannot place restrictions. That is one of the restrictions and the Minister of State has already rejected the other restrictions. We should set a target that we have the best possible police force and the best possible systems adopted by the police force and that anybody working with it should comply with them. In this instance, I do not believe that those who would operate in Ireland under the Garda Síochána could be held liable because the liability issue does not apply to members from non-EU countries.
There is and there will be joint operations between the Garda Síochána and the FBI or the Mexican police force, for example, all of which can be dealt with if we initiate other legislation which sets out the parameters for those joint investigations. This Bill is supposed to deal specifically with the European Union and events and issues which are cross-jurisdictional or affect the European Union as a whole. It is not meant to apply to global joint investigation teams, which it seems to be by the way it is worded, especially in the section I am trying to delete which extends the remit of joint investigations well beyond that for which they were originally intended. The Minister of State should think again.
I have a number of final points to make on the issues of joint investigation teams and co-operation. I was a member of the Oireachtas sub-committee on the Dublin-Monaghan bombings. Many people did not bother to co-operate with the sub-committee, which I found very offensive, and we sought submissions. I found it offensive that a former Taoiseach did not wish to appear before the committee and make a submission. The first citizen of Dublin, the Lord Mayor spoke to the media on the subject of the bombing. He did not have the courtesy to respond, even when Mr. Justice Barron wrote to him. I do not blame the police forces or other people. There is an onus and responsibility on us all to be good citizens and to live up to certain standards where joint investigations teams are concerned.
On the positive side, some people came in from England and America and one former British soldier, Colin Wallace, made an excellent detailed submission, with no axe to grind and treated our sub-committee with great respect. His superiors, however, such as Paul Murphy, did not have the courtesy to do that. It is important that we examine the real issues in this respect. We must have co-operation, quality policing, police forces that respect human rights and police forces and investigation teams which the citizens respect.
The people appointed from non-EU member states will be subjected to the same rules as personnel appointed in an EU context, and foreign police who operate here under some circumstances will be liable for any criminal acts committed here in the same way as gardaí would be liable in accordance with section 12(a) of the Bill.
Question, "That the words proposed to be deleted stand", put and declared carried.
Amendment declared lost.
I move amendment No. 12:
In page 13, line 41, after "2004” to insert the following:
", or
(d) in such other circumstances as may be determined by the Commissioner with the consent of the Minister”.
This amendment seeks to amend section 10 which deals with amendments of the Garda Síochána Act 1989. The Bill reads:
The Garda Síochána Act 1989 is amended:
(a) in section 3 by the substitution of the following subsection for subsection (2) (inserted by section 5 (a) of the Europol Act 1997):
"(2) Notwithstanding anything contained in the Acts, a member of the Garda Síochána to whom this section for the time being applies shall be liable to serve outside the State ...
(c) as a member of a joint investigation team within the meaning of the Criminal Justice (Joint Investigation Teams) Act 2004.”.
The Labour Party amendment seeks to add the words:
", or
(d) in such other circumstances as may be determined by the Commissioner with the consent of the Minister”.
The amendment was raised in the Seanad where the Minister of State at the Department of Justice, Equality and Law Reform, Deputy O'Dea, said that section 3(2) of the Garda Síochána Act 1989 does not exhaustively list the circumstances in which a garda may serve outside the State. On that basis he rejected an amendment which would have applied the disciplinary regulations to gardaí serving abroad under the section. It seems inappropriate to have a non-statutory regime for gardaí abroad side by side with a statutory regime. Accordingly, we suggest a mechanism to bring other existing missions abroad into the ambit of the Garda Síochána Act. What arises is that some gardaí may serve overseas under a statutory regime and others under a non-statutory regime.
This matter was raised on Committee Stage when it was indicated that the proposed amendment was not a runner. The same arguments still apply in rejecting the amendment. Deputy O'Shea intends to amend the Garda Síochána Act 1989 so that all circumstances under which gardaí serve abroad are covered by statute rather than informal arrangements. The purpose of this Bill is to enable effect to be given in Irish law to the EU Council framework decision on joint investigation teams. Accordingly, the Bill as drafted amends the Garda Síochána Act 1989 to add membership of joint investigation teams to the range of activities for which members of the Garda Síochána are liable to serve outside the State. It would not be appropriate to include a catch-all provision for all assignments abroad along the lines proposed in the amendment by Deputy O'Shea in this Bill. The scope of the Deputy's amendment is too broad for this Bill.
There is a provision in section 44 of the Garda Síochána Bill 2004, which is awaiting Committee Stage in the other House, which will address the Deputy's concern. Section 44 of that Bill provides for the assignment of members of the Garda Síochána on international service and reflects the nature and scope of Garda overseas service which has grown over the past 15 years. Section 44(1) provides that the assignment of eligible members to perform duties of a police character with an international organisation such as the UN is a matter for the Government whereas the Garda Commissioner may assign eligible members to perform liaison duties and other overseas duties as is provided for in section 44 (2). Such assignments include liaison duties with Europol or, subject to the agreement of the Government, with a law enforcement agency of a state other than the State or with international organisations. I cannot therefore accept the Deputy's amendment.
On the basis of what the Minister of State has said and his assurance that this issue will be adequately covered in the other legislation, I will withdraw the amendment.
Amendment, by leave, withdrawn.
I move amendment No. 13:
In page 14, between lines 20 and 21, to insert the following:
"11.—For the avoidance of doubt the disciplinary regulations for the time being in force applying to members of the Garda Síochána shall apply to service by a member whether within or outside the State.".
We are still on section 10 of the Bill which deals with amendments to the Garda Síochána Act and we seek to introduce a new section 11. The amendment is self-explanatory and I look forward to hearing the Minister of State's response.
I propose to take amendments Nos. 13 and 15 together as both deal with disciplinary matters for members of joint investigation teams. These issues were raised on Committee Stage and during the passage of the Bill through the other House. The points made in response to the amendments at that time still apply. Amendment No. 13 proposes to provide that the Garda Síochána discipline regulations of 1989 will apply to members of the Garda Síochána within or outside the State. This is already the case. Discipline of members of the Garda Síochána under the 1989 regulations is not bound by geographical limits. An explicit statement in this Bill that the 1989 disciplinary regulations apply in the context of this Bill could give rise to the suggestion that they might not apply where they are not specified in other legislation. On Committee Stage I gave the example of there being no provision in the Europol Act 1997 to the effect that members of the Garda Síochána assigned to serve abroad with Europol will be subject to the disciplinary regulations whether within or outside the State. The amendment is unnecessary and undesirable for the reasons outlined. Accordingly, I do not propose to accept it.
I will discuss amendment No. 15 if that is agreed.
Is that agreed?
Agreed.
The proposal in amendment No. 15 was also raised on Committee Stage and during the passage of the Bill through the Seanad. The amendment deals with breaches of discipline by seconded members operating in the State, that is, team members from another member state involved in establishing the team which is operating in the State. It proposes that where such a breach of discipline takes place, the matter will be investigated by the Commissioner who shall report to the relevant competent authority of appointment. The proposed amendment is somewhat similar to section 6 of the Garda Síochána (Police Co-operation) Act 2003 which provides for procedures for breaches of discipline by a member of the PSNI who is seconded to the Garda Síochána.
There is, however, a significant difference between members of the PSNI being seconded to the Garda Síochána and members from other EU states being seconded to joint teams operating in the State. Where a member of the PSNI is assigned to the Garda Síochána, he or she becomes a member of the force and will be treated as such in all respects, whereas a member of a foreign police force who is seconded to a joint team operating in the State will remain in the employment of the foreign state which appointed him or her. He or she will act under the direction or control of the team leader for the duration of the joint investigation. Such officers will, however, continue to be subject to their home authority's disciplinary rules.
There is little to be gained from making a specific legislative provision for the Garda Commissioner to report to the competent authority in another state on alleged breaches of discipline when it is not within the remit of the Commissioner to follow up on the issue in any manner or when the competent authority in another state is not bound in any manner to take action on foot of any such report. If the seconded member commits any breach in the State which is criminal in nature, he or she, in the same way as would a member of the Garda Síochána, will be criminally liable here under section 12 of the Bill. The State will also be liable, in accordance with section 13, for any injury, loss or damage caused by seconded members in the performance of their duties as a member of a joint team in the State.
It would not be prudent to put in place detailed legislative provisions to report on alleged breaches of discipline which, in all probability, are unlikely to arise to any great extent, if at all. Matters such as this are best left to be dealt with on a case-by-case basis. They can be provided for, in a tailor-made fashion, in each agreement establishing a joint investigation team to suit the particular investigation which will have persons from different countries subject to different rules and procedures.
While I appreciate the Deputy's concerns, I do not propose to accept the amendment.
By and large, the Minister of State's comments have allayed some of my concerns regarding gardaí not being subject to the same disciplinary procedures inside or outside the State and what will happen when a member of an investigation team within the State who hails from outside the State, is guilty of a crime. As I understand it, the Minister of State indicated that such a person would be liable to the criminal law like anyone else within the State.
There is an issue of communication involved here. Even though I am not aware of anything in the legislation which provides for it, I take it that where suspicions arose about an officer from a police force outside the State, such suspicions would be the subject of an investigation by the Garda authorities. Is there any obligation on the Commissioner to make that known to the competent authority within the other member state?
I refer the Deputy to section 6(6)(a) which states, “The Commissioner may remove a member of a joint investigation team assigned under subsection (1) from such membership.” I also refer him to section 6(6)(b) which states, “The Minister may, if so requested by the Commissioner, remove a member of a joint investigation team appointed under subsection (2) from such membership.” I would assume, in the context of the co-operation that will exist in respect of setting up a joint team, that the Irish team leader would liaise with the competent authorities abroad. I expect that if there are suspicions about or an investigation into the behaviour of a foreign member of a team, details of such suspicions or investigations would be relayed to and taken up with his superiors in his home country.
Amendment, by leave, withdrawn.
I move amendmentNo. 14:
In page 14, to delete lines 41 to 43.
The purpose of this amendment is to ensure that all the information lawfully obtained in this State by a member or a seconded member of a joint investigation team can only be made available to and used by the authorities in another member state for legitimate purposes outlined in sections 11(1)(a), (b) and (c). These paragraphs state:
(a) the purposes for which the joint investigation team was established,
(b) subject to subsection (2), the detection, investigation and prosecution of criminal offences other than those in respect of which the team was established if the prior consent of the Member State where such information became available has been obtained,
(c) the prevention of an immediate and serious threat to public security in one of the Member States concerned and only if the Member State where such information became available has been informed of such use and, without prejudice to paragraph (b), a criminal investigation is conducted subsequently ...
These are the circumstances in which it would be reasonable, responsible and in the public interest to share information. Sinn Féin accepts this and for that reason we regard the formulation used in paragraphs (a) to (c) to be sufficient. However, the scope of paragraph (d) is extremely wide in that it allows information to be shared for any other purposes agreed between the competent authority here and those in other member states. This is far too broad in that it would allow the sharing of intelligence for its own sake in circumstances where there is no criminal investigation and no immediate public threat.
I cannot agree that this is necessary for public safety. Sinn Féin believes it potentially goes against the public good and the right to privacy. We are, therefore, trying to narrow the scope of section 11(1) by removing paragraph (d). This would not damage the idea behind the Bill. In the long term, it would be in the interests of the public if the amendment was accepted. It would also help to focus the activities of investigation teams to a greater degree in that they would not have this broad scope available to them in the background when they are in this country obtaining information or investigating some matter.
Section 11 gives effect to Article 1.10 of the framework decision and is concerned with the use of information lawfully obtained by any member of a joint investigation team while operating in the State and where the information in question would not otherwise be available to his or her own competent authorities.
Section 11(1)(d) provides that any information lawfully obtained by any member or seconded member of a joint investigation team while operating in the State which is not otherwise available to the competent authorities of the member states, including this State, that established the team may only be used for the purposes, within the scope of the legislation, as are agreed by the competent authority here and the other competent authorities concerned. This provision is intended to reflect the provision in Article 1.10(d) of the framework decision which provides for the use of information for other purposes to the extent that it is agreed between member states setting up a team. The Bill provides for the use of such information for such other purposes within the scope of the legislation as are agreed between the competent authorities. It provides a tighter drafting of the provision than that contained in the framework decision.
As the provision the Deputy is seeking to delete is specifically provided for in the framework decision, I cannot agree to its deletion from the Bill. For that reason, I must reject the amendment.
Just because something is contained in the framework decision does not mean it is correct. I do not believe we should accept what is contained in the framework decision in every instance. The framework decision requires that we should adopt legislation which would give effect to the major part of that decision. In this instance, even if the provision is tighter I do not believe it should be included in the legislation. The ability to extend matters, in terms of information and intelligence gathering, beyond the provisions contained in paragraphs (a) to (c) should not be available, particularly in light of the fact that joint investigation teams can be made up not only of police officers but also of members of intelligence agencies within Europe.
My request is reasonable and it does not limit the scope of investigations. We should ensure that, to the greatest degree possible, legislation is specific. This provision is not specific. It uses the term "such other purposes" and is open, wide-ranging and not in the public interest.
We cannot change what is in the framework decision. It has been agreed at EU level and we must implement it.
The Minister of State has just said this is a narrower interpretation so it has already been changed.
It has been changed in terms of the way it has been written, but we cannot re-write the framework decision.
Question, "That the words proposed to be deleted stand", put and declared carried.
Amendment declared lost.
Amendments Nos. 15 to 17, inclusive, not moved.
Bill reported without amendment and received for final consideration.
Question put: "That the Bill do now pass."
Vótáil.
Will the Deputies claiming a division please rise?
Deputies Crowe, Morgan, Ó Caoláin and Ó Snodaigh rose.
As fewer than ten Members have risen I declare the question carried. In accordance with Standing Order 68 the names of the Deputies dissenting will be recorded in the Journal of the Proceedings of the Dáil.
Question declared carried.
As the Bill is considered by virtue of Article 20.2.2° of the Constitution to be a Bill initiated in the Dáil, it will be sent to the Seanad.