I move amendment No. 24:
In page 9, lines 17 and 18, to delete “upon the nomination of the Authority, be made by the Government” and substitute “be made by the Authority”.
Vol. 901 No. 1
I move amendment No. 24:
In page 9, lines 17 and 18, to delete “upon the nomination of the Authority, be made by the Government” and substitute “be made by the Authority”.
I move amendment No. 25:
In page 9, line 19, to delete "nominate" and substitute "appoint".
That is more like it.
The Deputy surprised us.
He is learning.
It frees up the canvass for a while.
I move amendment No. 26:
In page 9, line 20, to delete ", with the prior approval in writing of the Government,".
I move amendment No. 27:
In page 9, line 23, to delete ", with the approval of the Minister,".
I move amendment No. 28:
In page 9, line 27, to delete "nominated" and substitute "appointed".
I move amendment No. 29:
In page 9, line 35, to delete "for nomination by" and substitute "to".
I move amendment No. 30:
In page 9, lines 35 and 36, to delete "nomination by the Authority under subsection (1) for appointment" and substitute "appointment".
I move amendment No. 31:
In page 9, to delete lines 37 to 43, and in page 10, to delete lines 1 to 8.
I move amendment No. 32:
In page 10, line 10, to delete "Minister" and substitute "Authority".
I move amendment No. 33:
In page 10, line 11, to delete "Minister" and substitute "Authority".
I move amendment No. 34:
In page 10, line 12, to delete "Minister" and substitute "Authority".
I move amendment No. 35:
In page 10, line 14, to delete "The Government shall, as soon as may be, inform the Authority" and substitute "The Authority shall, as soon as may be, inform the Government".
I move amendment No. 36:
In page 10, to delete lines 24 to 27 and substitute the following:
" "11. (1)Subject to section 12, a person who holds the office of Garda Commissioner, Deputy Garda Commissioner or Assistant Commissioner may be removed from office by the Authority following consultation with the Government, but only for stated reasons, including because—".
I move amendment No. 37:
In page 10, line 25, to delete "or Deputy Garda Commissioner" and substitute ", Deputy Garda commissioner, Assistant Garda Commissioner, chief superintendent or superintendent".
I move amendment No. 38:
In page 10, line 26, to delete "Government" and substitute "Authority".
I move amendment No. 39:
In page 10, line 36, to delete "Government" and substitute "Authority following consultation with the government".
I move amendment No. 41:
In page 10, to delete lines 37 to 41 and substitute the following:
"(2) The Authority may, following consultation with the Minister, for the purposes of subsection (1) remove from office a person who holds the
office of Garda Commissioner, Deputy Garda Commissioner or Assistant Commissioner, if the reasons for the removal relate to policing services.".
I move amendment No. 42:
In page 10, to delete lines 37 to 41, and in page 11, to delete lines 1 to 23.
I move amendment No. 43:
In page 11, to delete lines 1 to 11 and substitute the following:
"(3) A person who holds the office of chief superintendent or superintendent may be removed from office by the Authority.".
I move amendment No. 44:
In page 11, line 14, to delete "Government" and substitute "Authority".
I move amendment No. 45:
In page 11, line 23, to delete "Government" and substitute "Authority".
I move amendment No. 46:
In page 11, lines 24 and 25, to delete "or 13A(1)(a), as may be appropriate,".
I move amendment No. 47:
In page 11, lines 27 and 28, to delete "Government or the Authority, as the case may be," and substitute "Authority".
I move amendment No. 48:
In page 11, line 29, to delete "Government or the Authority, as the case may be," and substitute "Authority following consultation with the Government".
I move amendment No. 49:
In page 11, line 29, to delete "Government or the Authority, as the case may be," and substitute "Authority".
I move amendment No. 50:
In page 11, line 31, to delete "subsection (5)" and substitute "subsection (2)".
I move amendment No. 51:
In page 11, line 32, to delete "Government or the Authority, as the case may be," and substitute "Authority".
I move amendment No. 52:
In page 11, line 34, to delete "or 13A, as may be appropriate,".
I move amendment No. 53:
In page 11, to delete lines 36 to 39 and substitute the following:
"(7) Subject to subsection (8), the Authority shall, as soon as may be, inform the Government of a proposal to remove a person from office under subsection (1) or (4) and any related suspension from duty under subsection (5).".
I move amendment No. 54:
In page 11, lines 36 and 37, to delete "Subject to subsection (8), the Government shall, as soon as may be, inform the Authority" and substitute "The Authority shall, as soon as may be, inform the Minister".
I move amendment No. 55:
In page 11, lines 38 and 39, to delete "subsection (1) or (4) and any related suspension from duty under subsection (5)" and substitute "subsection (1) and any related suspension from duty under subsection (2)".
I move amendment No. 56:
In page 11, to delete lines 40 to 43, and in page 12, to delete lines 1 to 5.
I move amendment No. 57:
In page 11, line 40, to delete "The Government shall consult with the Authority" and substitute "The Authority shall, inform the Government".
I move amendment No. 58:
In page 12, line 3, to delete "The Authority shall, as soon as may be, inform the Government" and substitute "“The Government shall, as soon as may be, inform the Authority".
I move amendment No. 59:
In page 12, line 7, after "of" to insert "Garda Commissioner, Deputy Garda Commissioner,".
I move amendment No. 60:
In page 12, lines 13 and 14, to delete “and 13A (inserted by section 13)”.
I move amendment No. 61:
In page 12, line 16, after “of” to insert “Garda Commissioner, Deputy Garda Commissioner,”.
I move amendment No. 62:
In page 12, line 23, to delete “subsection (1) or (4) of section 11, the Government” and substitute “section 11, the Authority”.
I move amendment No. 63:
In page 12, line 23, to delete “Government” and substitute “Authority”.
I move amendment No. 64:
In page 12, line 24, to delete “Government” and substitute “Authority”.
I move amendment No. 65:
In page 12, to delete lines 29 to 35 and substitute the following:
“(b) by substituting the following for subsection (2):
“(2) The Authority may, if they consider it necessary or appropriate to do so, appoint a person to—
(a) hold an inquiry into any matter giving rise to a notification under subsection (1), and
(b) report to the Authority on the findings of the inquiry.”,
(c) by substituting the following for subsection (6):
“(6) If an inquiry is held, the Authority shall—
(a) consider the report on the findings of the inquiry,
(b) inform the Minister of the findings of the inquiry,
(c) make a copy of the report available to the person whose removal from office is the subject of the report, and
(d) give that person an opportunity to make representations relating to the report.”,
I move amendment No. 66:
In page 12, line 29, to delete “The Government shall inform the Authority” and substitute “The Authority shall inform the Government”.
I move amendment No. 67:
In page 12, to delete line 41, and in page 13, to delete lines 1 to 7.
I move amendment No. 68:
In page 13, line 3, to delete “Authority” and substitute “Government”.
I move amendment No. 69:
In page 13, line 12, to delete “The Minister may, with the consent of” and substitute “The Authority may, following consultation with”.
I move amendment No. 70:
In page 13, line 12, to delete “Minister” where it firstly occurs and substitute “Authority”.
I move amendment No. 71:
In page 13, line 24, to delete “subsections (3) to (9) of”.
I move amendment No. 72:
In page 13, to delete lines 28 to 40, to delete page 14, and in page 15, to delete lines 1 to 17.
I move amendment No. 73:
In page 15, between lines 18 and 19, to insert the following:
14. (1) Section 14(1) of the Principal Act is amended to be read as follows:
“(1) The Garda Commissioner may appoint, subject to and in accordance with the regulations, and subject to oversight by the Authority, such numbers of persons as he or she sees fit to the ranks of garda, sergeant and inspector in the Garda Síochána.”.”.
Amendments Nos. 74, 75 and 155 are related and will be discussed together by agreement.
I move amendment No. 74:
In page 15, to delete lines 37 and 38, and in page 16, to delete lines 1 to 3 and substitute the following:
“ “17. (1)The Authority shall, by order within 12 months of the establishment
day of the Authority, establish a code of ethics that—
(a) includes standards of conduct and practice for members,
(b) is fully consistent with the policing principles, and
(c) encourages and facilitates the reporting of wrongdoing in the Garda Síochána by members.”.
We discussed an aspect of the code of ethics earlier. The section regarding the code of ethics was in the 2005 Act but no Minister ever drafted the code of ethics despite the section being framed with the mandatory "shall". The introduction of the trade unions among the bodies the authority is required to consult seems curious as the Minister would not be required to consult with the unions if she had ever drafted the code of ethics under the 2005 Act. There is a requirement to consult the Garda Commissioner as the representative of An Garda Síochána. This we believe would have been sufficient. It is also curious that there is a requirement to consult with the Minister for Public Expenditure and Reform as setting standards of conduct and policing practice are hardly considered industrial relations issues.
There is a reference to the code of ethics being published but it appears that the Garda code is not available for public scrutiny. This seems strange. I noted in the report published last week that the Garda Inspectorate states:
The Garda Code provides standard operating processes and procedures for all members of the Garda Síochána, garda staff and student gardaí. It is a comprehensive document and the two volumes extend to almost 1,000 pages. The most recent edition of Volume I (5th) was published in 2005 and replaced a 1995 version.
The Code is intended as a mandatory guide for all work activities. Within the Code, a section sets out the generic roles and responsibilities for supervisory ranks. In particular, it highlights that supervisors have the responsibility for ensuring that all members under their supervision are made aware of and understand new policies and procedures.
The Code is not the single repository of information and is but one reference point. It is now available in electronic format on the Garda Portal [an internal search engine that the garda members can use to find the most current policy, legal decision or information on a particular issue] and this should provide details of the most up-to-date version of a policy or instruction.
During field visits, the Inspectorate was informed that some parts of the Code are now very dated, such as student training and firearms licensing. The Code does not contain details of the date that a particular section was last refreshed or when a section is due to be reviewed. The Inspectorate was unclear as to the value added of retaining the Garda Code, without maintaining an up-to-date version.
It is not maintained properly and I am not sure the Garda Inspectorate stated it at any stage but to the best of my knowledge, it is not accessible by the public which should know what is the Garda code. One might say that if it contains 1,000 pages not many will read it but that is not an argument and it should be accessible to those who want to access it. If the Garda Inspectorate states there is not much point in maintaining it unless it is updated, it is very important to maintain it but it also needs to be updated. Hopefully, that will be dealt with in response to the Garda Inspectorate’s report.
The biggest problem with the proposed legislation around the code of ethics is that there will be no sanction for breaching the code, which makes it a bit meaningless. If any Minister had ever published the code of ethics, as allowed under the 2005 Act, there was the potential to introduce disciplinary measures. The position now is weaker than the 2005 legislation allowed. It is good that the new code of ethics will be published but it is paramount that some form of disciplinary measures are attached to it.
If there are none, I do not think it will change a whole lot. I do not see why anyone should change his or her behaviour if he or she does not have to worry about any sanctions whatsoever. Am I reading the legislation incorrectly? Am I right in saying there is not a disciplinary measure for a breach of the legislation? It would be good if the Minister could explain the rationale behind it.
A few weeks ago in the House, the Minister was pretty upset when I suggested that the level of discipline and accountability among some senior gardaí, although not all, left a lot to be desired. I said it was leading to problems in the force. I found it interesting that within days, the Garda Inspectorate report referred to much the same and did not disagree with what I said on the matter.
It should be pointed out that the code of ethics in Northern Ireland has a much stronger status and is the standard against which police officers are measured when an allegation of misconduct is made. The code of ethics there is drafted by its board but has a much stronger focus on human rights obligations - for example, the European Convention on Human Rights and UN codes - than the proposed one in this Government's Bill.
The chief constable in the North is obliged to ensure that all officers have read and understand the code. This requirement was in the heads regarding our authority but has been removed from the final draft. Also, the policing principles in the North set out that when carrying out their functions, police must be guided by the code of ethics, giving the code added status. The board also includes an assessment in its annual report as to the performance of the police in this regard, which is significant.
It has been pointed out by one professor that the legislation removes a function of the authority published in the heads, back in November 2014, relating to human rights and policing. In the Seanad, the Minister of State, Deputy Ó Ríordáin's explanation was that human rights in policing are more properly addressed by the IHRC than by the proposed authority. I do not really accept that stands up to much scrutiny, as the Northern Ireland Policing Board has a principal function of monitoring and supervising compliance with human rights standards in policing, which co-exists with the responsibilities of the Northern Ireland Human Rights Commission.
The Minister will recall that Professor Dermot Walsh was adamant that the failure to human rights proof all aspects of policing is a challenge to An Garda Síochána and a challenge to how we do policing in Ireland. It is something the Minister should reconsider.
This is probably one of the key aspects of the Bill but it is a much watered down version of what we thought would be in the legislation. It is in sharp contrast to the legislation Deputy Wallace published for a genuinely independent Garda authority, which was allowed to go to Second Stage. That Bill proposed that the board and the Commissioner would be responsible for drafting a code of ethics for the Minister to establish by regulation, with the approval of the board. In addition, a code of service would be drawn up setting out standards of efficiency and service that the public could expect from gardaí. This is important because complaints in that vein cannot currently be made to GSOC.
This is a critical section. In the press releases the Minister sent out more than a year ago, it was lauded as a great step forward but as Deputy Wallace said, the code of ethics was always there under the 2005 Act. It is just that successive Ministers chose not to implement it. As regards this pre-existing code, the Minister is saying she will bring it in but no disciplinary sanction will be in place for violating it, which makes it utterly ludicrous.
The Bill states that the authority will draw up a code of ethics that includes standards of conduct, practice for members and internal whistleblowing provisions. However, these will have to be done with a range of bodies such as the unions, as Deputy Wallace pointed out earlier. The problems that have got us to this stage mean the dogs on the street know we need an independent Garda authority. One of the reasons for that was precisely due to the lack of adequate provision for, and measures concerning, Garda whistleblowers.
As recently as two weeks ago, Deputy Wallace put these questions to the Minister for Justice and Equality under the so-called new Garda Síochána, with a new Minister and a new Garda Commissioner, albeit 18 months old so not really that new. In fact, the current treatment of whistleblowers is absolutely dire. Subsequently, the position of Garda Keith Harrison has been vindicated by the State pulling out of a High Court action it had taken against him at enormous personal and emotional cost, not to mind the cost to the taxpayer of a ludicrous, vindictive action. It is worth saying that the judge in that case was the senior counsel during the Morris tribunal. It is quite clear that from his stance, nothing has really changed in the sense that he awarded full costs to Garda Harrison.
This is important because why else are we here discussing a policing authority? It is to have independent scrutiny and accountability of the gardaí. Unfortunately, however, that is not something that we are getting in the present arrangement. It was worrying to hear the reports on RTE radio on Sunday which referenced the fact that - subsequent to Deputy Wallace's intervention with the Minister the last time, when she could not say strongly enough how great the new Garda regime was - Garda whistleblowers were being frustrated, including by a lack of information being given to that garda's legal team. It was only as a result of those matters being raised here that files were released by the Garda and sent to GSOC.
Given the current treatment of decent serving gardaí by senior management, there is clear and indisputable evidence of harassment and demonisation undermining their position. It is quite clear, therefore, ethics are lacking. We need a system in place so that it can be properly dealt with. We also need to examine the whole area of human rights proofing. It is ridiculous that the Minister of State, Deputy Ó Ríordáin, went to the Seanad and said that human rights stuff would be better off with the Irish Human Rights and Equality Commission.
That body, the Minister's own watchdog, contributed to this Bill. In its observation, it said there should be disciplinary sanction. It said the role of the authority should be to authorise disciplinary sanction over senior gardaí. If we do not have this system of ethics properly established, then we will have a serious problem.
It would be entirely appropriate for the Minister to comment on the Garda Inspectorate's report which has obviously shocked people. It has also vindicated everything we have said - that nothing has changed inside the ranks of the Garda Síochána, except the faces at the top. I am surprised that people have not called for the current Garda Commissioner to resign because she is standing over a situation that is at least as bad, if not worse, than what the former Commissioner Callanan stood over. It is worse because the scale of the knowledge that is in the public domain has not been addressed.
The previous Garda Inspectorate's report gave a damning account of gardaí massaging the crime figures, for example. That resulted in the analysis of crime figures having to be withdrawn for a period. It is a very serious matter. We know for a fact that the massaging of the figures is still continuing. In recent weeks, in Superintendent Pat Murray's station in the midlands and in Athlone, we have seen direct evidence of at least eight cases where crimes were written down so that the original crime was reclassified as a more minor matter. There is clear evidence of massaging the figures - for example, changing burglaries to criminal damage, which is reclassification.
It is a very serious situation and the Garda Inspectorate was clear that there is a lawlessness out there that is not being addressed. To do that, we need a strong code of ethics with strong human rights at its centre. It is really regrettable that is not present in the Bill. The board should assess these matters annually as well as sanction. One of the reasons for such indiscipline at senior levels in the force, which is creating major demoralisation further down the ranks, is that nobody at senior management levels is being called to account for their actions. The points we have made previously about how people get promoted jar very much with ordinary decent members of the force.
We think this is a critical part of the Bill. What we are getting under the Bill, far from being a beefed-up code of ethics, is a watering down of a provision the Minister decided not to act on previously and it is critical if we are to really reform this.
I would like to hear the Minister comment on the points made by Deputy Wallace about why there is a need to consult with the Garda representative bodies and even more curiously the Minister for Public Expenditure and Reform. I am not sure what his role in human rights proofing of An Garda Síochána is or where that fits in.
This gets to the heart of much of what we are talking about. Why are we discussing a Garda authority Bill? It is because of the crisis in policing that occurred. New evidence in the latest Garda Inspectorate report indicates that those problems are there. As the Minister knows well, the hundreds of historical cases of Garda malpractice that had not been addressed and which landed on her desk show why we need a code of ethics. In that context, I was utterly shocked to receive a copy of the letter her office sent to Cynthia Owens on her case, which had been through that review mechanism. That review acknowledged deficiencies in Garda work. Exhibits, including the DNA on her murdered baby, were destroyed and lost. The internal review mechanism refers to a discredited review that was conducted into her case, a review which ignored and disagreed with the findings of the inquest which confirmed that she was the mother of baby Noeleen. The Minister's independent review mechanism relied on the person who carried out that review to tell that woman that nothing further would be done in her case. It is utter madness.
We have now had two independent reviews into her case. Neither of them bothered to interview the woman who was the victim of a paedophile ring, which she has alleged involved three gardaí as participants, making it very strange but relevant that exhibits then later go missing in that case. She was not even corresponded with. This is a serious problem and it will not go away just because those people have been told their cases got nowhere. These are the reasons a policing authority was put centre stage and they remain. Sadly, the measures the Minister has introduced in the Bill will not address such behaviour. If those who stand over these practices at the top are still there, why would a middle or lower ranking garda even bother to try to do their best?
I support the amendment. I was also alarmed to learn from the Garda Inspectorate report that even though a code of ethics was signposted in the Garda Síochána Act 2005, it is still not in place ten years later. I am sure the Minister will agree that report was a damning indictment of the repeated failure of the management of An Garda Síochána to implement recommendations from, not just Garda Inspectorate reports, but also a range of other inquiries, reviews and investigations over recent years. We are repeatedly told that they accept the recommendations in these reports but the recommendations are not being implemented. It was a damning indictment of the failure of the management of An Garda Síochána to act.
The report was superb. I am also conscious that the Garda Inspectorate published a report on penalty points. In recent days, it has been brought to my attention that a considerable number of members of An Garda Síochána are still avoiding penalty points by utilising what is called a statutory exemption for emergency vehicles. The Minister and I, along with all citizens, would agree this should apply for a garda driving a Garda vehicle or their own vehicle while pursuing somebody engaged in the act of criminality. We can accept there are circumstances when gardaí have to use either his or her own vehicle or more likely a Garda vehicle. My understanding is that on none of the occasions when these members of An Garda Síochána had points terminated under statutory exemption for emergency vehicles measure did they prove they were using the vehicle in question for that reason. They are beating the rap unlike every other citizen.
It was brought to my attention that a senior member of An Garda Síochána has repeatedly had penalty points terminated, even including in the middle of this year, 2015. I have seen the evidence with my own eyes. This senior member of An Garda Síochána claimed he was driving the vehicle under the statutory exemption for emergency vehicles. He is a repeat offender who, as far as I can see, has never had penalty points allocated.
Here we are at the end of 2015 and the Minister has stood up in this Chamber and given us assurances that the recommendations of the Garda Inspectorate, the Comptroller and Auditor General and others would be implemented by An Garda Síochána. On the basis of the information I have just given, will the Minister undertake an immediate review of all terminations of penalty points that are categorised a statutory exemption for emergency vehicles to ensure that they were genuinely using the vehicle to prevent a crime, with paperwork to back it up?
I also ask the Minister to implement the recommendations that came through the Garda professional standards unit. There were two key recommendations. One was an evader unit to be set up to track the PULSE system to look at people who had points repeatedly terminated, be they members of An Garda Síochána or other citizens. The second was to have the statutory exemption issue dealt with. That is just one example and I could give the Minister many others where we have been assured that change is on the way and that recommendations will be implemented.
Let us consider the three-year investigation of crime work, a milestone examination by the Garda Inspectorate. How many of those recommendations have been implemented? The Garda Inspectorate report, Changing Policing in Ireland, made 12 key recommendations, only two of which have been implemented. Unfortunately, there has been a refusal by management of An Garda Síochána to implement recommendations for change by the Garda Inspectorate and others.
Here is my problem with all this. With the guidance of her officials, the Minister has decided to disempower the new policing authority from being as independent as it could be. I will give some examples. The Commissioner and deputy commissioner will be appointed and removed by Government. The Commissioner is accountable to Government. It has been stated that the Commissioner will remain accountable to Government on matters of national security but I say respectfully that is not accurate. The original provision on accountability is not altered. The Commissioner will remain accountable to the Minister for the performance of the Commissioner's functions and those of the Garda Síochána. This concerns all aspects of policing and not just national security.
Policing plans, strategies and priorities must be confirmed by Government. Security priorities will be set by Government. The budget is determined by Government. The Minister can demand any documents of An Garda Síochána. The Minister can issue written directives to An Garda Síochána and to the authority. CCTV schemes must be approved by the Minister. Ministerial consent is required for GSOC to investigate the Commissioner. The Minister decides the number of senior rank positions. The Minister gives consent on the number of civilian staff, the appointment of members to the audit committee and the appointment of the CEO of the authority. The Minister decides what constitutes State security. Government consent is required for the Garda to work with a police service in another state.
The Minister authorises delegation of the Commissioner's functions to the deputy commissioner. The Minister can appoint someone to inquire into any aspect of policing and statistical information on crime compiled by An Garda Síochána is to go the Minister and not to the authority. I could go on.
Last week’s Garda Inspectorate report was a devastating report in terms of its implications for the role of the Houses of the Oireachtas to oversee An Garda Síochána. That is the reason we need a truly independent policing authority with the teeth to ensure that An Garda Síochána management oversees the change that is required. Frankly, the Government has failed again and again. I genuinely am shocked to learn that we do not have a cast iron penalty points system in spite of reports by the Comptroller and Auditor General, the Garda Inspectorate, the PAC and everything we said about the penalty points system. We do not have a penalty points system that ensures whether one is a member of An Garda Síochána or a citizen that if one has been speeding there are only two grounds on which one would have the points terminated, namely, if one was bringing a family member to hospital in an emergency, with the necessary paperwork from the hospital to prove that was the case, and that members of An Garda Síochána would have to prove by means of a report on the PULSE system that they were in pursuit of criminals or suspected criminals in a vehicle. One would not just have the speeding charge waived. Garda management is failing to ensure the change that is required is being delivered even on that issue. That is why we need a genuinely independent policing authority with teeth and the ability to hold Garda management to account.
The men and women of An Garda Síochána who are trying to do their job are being failed even more than any of us in these Houses. They are without leadership and the clear direction they require. At times they have issued penalty points only to see them terminated by a senior colleague for some derisory reason. That is why I am so disappointed with what we have seen in terms of the dilution of the authority. We have a conservative Department of Justice and Equality that has interpreted the Constitution in a conservative way to say that the Constitution which rightly gives authority to the Executive to protect the security of the State must be extended and interpreted to include all policing matters. The Garda Síochána, the police of this State, oversee security and policing. Because of that unique situation, the Department has interpreted the Constitution to give the Cabinet the power to continue to control policing to an extent that is not necessary.
Given the information I and other Opposition colleagues have given the Minister and last week’s damning Garda Inspectorate report that repeatedly refers to the failure of Garda management to implement recommendations for change, will the Minister please reconsider her response to Opposition amendments? Will she please give the policing authority the independence it needs to hold An Garda Síochána to account, to make sure that we have genuinely learnt the lessons of all the scandals of recent years and that there is a new beginning to policing and that we have a police service that the men and women of An Garda Síochána can be proud of and want to serve every day, and in which we the people across the State can have true faith? I am shocked to learn what I did about penalty points. I have seen written evidence that some members of An Garda Síochána can still get off with speeding. In one case, a senior member of An Garda Síochána, who has repeatedly come into the system, in the middle of this year beat the rap due to the loophole that exists. The Minister must put a stop to that. I know she wants to, but she must now show authority and deal with the issue and call an immediate review of the statutory exemption for emergency vehicles. The Minister must ensure that every case that is registered on the system is examined to see whether there is paperwork to prove the vehicle was genuinely used to protect the public or if the driver was abusing the penalty points system, which I believe happens. Some gardaí believe they are higher, more powerful and more entitled than other citizens. After everything we have been through, that is a scandal and the Minister must put a stop to it in the absence of an independent policing authority. Next year I want an independent policing authority to do that but in the absence of such an authority being in place the Minister still has the power and she must call in the Garda Commissioner tomorrow and ask why she has not implemented the recommendations of all the Garda Inspectorate reports and why after everything we have been through with penalty points some gardaí still believe they are above the law.
That is the challenge I set down for the Minister. I believe the Minister is genuine about her office. She must now take the opportunity to deal with this issue once and for all and send the message out to the brave whistleblowers who have taken a stand on this issue and to the Garda Inspectorate, the Comptroller and Auditor General, the members of the Committee of Public Accounts and the likes of Deputies Mick Wallace and Clare Daly and others who have championed the cause and exposed this issue that it will be dealt with once and for all.
If Deputy Mac Lochlainn has evidence of what he has just put before the Dáil, I would like him to give it to me because the matters to which he referred were one of the key issues we took seriously when we examined the penalty points reports. The Director of Public Prosecutions is to evaluate applications for cancellation made by a garda to avail of the statutory exemption for emergency vehicles where the garda is driving a private vehicle in the course of his or her duties. If Deputy Mac Lochlainn has evidence that somebody of a senior rank is abusing the system, I would like to have the evidence and I am sure the Commissioner would like to have that evidence. I assure the Deputy it will be followed up and examined because we have taken a whole series of initiatives and operationally the Garda has taken a whole series of initiatives. We took decisions at a policy level in government and we continue to work on the range of points that were made. I remind the Deputy that only three people are now authorised to cancel fixed charge notices under the new policy. That system is in operation. I also appointed a judge to oversee what was happening in that office. All of the other areas where recommendations were made for change were accepted by the Commissioner and were implemented. If for some reason Deputy Mac Lochlainn believes the opposite to be the case and he has evidence to that effect I would like to see it. I will follow it up and I have no doubt that the Garda Commissioner will follow it up operationally. I say the same to Deputy Wallace. If he has evidence of wrongdoing in the particular station he has just mentioned he should please supply the evidence because it needs to be followed up.
In terms of ethics, I do not accept the way the Garda authority has been described by any of the previous speakers. The authority will provide a new independent and dedicated forum for the public oversight of policing services. It will be a new engine to drive policing reforms and practices under the chair, Josephine Feehily, and the board and staff that will be appointed. The authority will ensure that An Garda Síochána is fit to address the ongoing and emerging challenges of modern policing. If one looks at the history of policing in this country it is a quite radical reform to have a new, independent policing authority made up the way it is with a chair, a strong board and staff with the authority we have given it.
Let me remind Deputies of the authority it has. It has authority to oversee the performance by the Garda Síochána of its policing functions under a broad range of headings. I will return to some of the points that were made about the role of Government. The authority has power to nominate persons for appointment by the Government to the posts of Garda Commissioner and deputy Garda commissioner, to appoint persons to the rank of Garda superintendent, chief superintendent and assistant commissioner and to remove them for reasons related to policing services. That is a very strong power for a police authority to have. The authority can also appoint persons to senior positions within the Garda civilian staff, determine Garda priorities on policing services, approve the three year Garda strategy statement, approve the annual Garda policing plan, establish a Garda code of ethics – I will return to the points that have been made about that – and the authority’s general goal to promote and support the continuous improvement of policing in the State.
Of course, there is work to be done and the Garda Inspectorate reports have shown that. I could give the Deputies a list of the initiatives that have already been taken in regard to the last Garda Inspectorate report, on which we had a detailed discussion here. Changes have been made in regard to data and the PULSE system. The commitment by the Government to the IT system will mean that already by the end of this year we will not only we have crime being reported on the PULSE system but we will have the investigation of crime on that system because money has been made available for the system that is needed. Next year, because of the investment that is being made, we will have the whole human resources system in place for the first time. It is not acceptable that this will be in place for first time but this was not dealt with during all the years of the Celtic tiger economy. This will be dealt with next year because the funding is available, the tenders have gone out and the decisions have been made that will ensure the Garda has the types of systems it needs in place to have effective policing and the proper deployment of resources. It is multifactorial. The Garda Inspectorate obviously has highlighted the ongoing work that is needed. The Garda Commissioner will be giving her response to that and has already implemented quite a number of the suggestions in the current report.
I would mention the focus groups and the work that was done with the members of An Garda Síochána, and a good deal of work was done with them by the Garda Inspectorate. It is worth keeping in mind that this was done two years ago. Quite a number of changes in regard to policing have been made, as we know, within the last year and half or so, and we should be conscious of that.
In regard to the role of Government and the various elements of the Bill, I want to put on record the point about the constitutional responsibilities of Government. I said previously that the legal situation is that as a matter of practice, as a matter of custom and as a matter of proper constitutional interpretation, the function of the Garda Síochána in the exercise of the policing power of this State has been interpreted by the courts as a function that is exercised as part of the executive power of the State. One does not just take that away. What we have done is crafted the Bill recognising that constitutional reality. While an executive power of the Government under Article 28.2o can be delegated it would not be constitutionally permissible for such a delegation to amount to an abdication of the Government's executive power. I put it to the Deputies that there are not too many Deputies in this House who, if questions or issues arose in relation to policing, would not want a Minister for Justice and Equality to come in here and respond to the queries one might have at that time, be it to do with the security issues we see at present or other operations.
I want to emphasise that the exercise of the policing function is an aspect of the executive power of the State. Many of the amendments proposed to this Bill, on which we have just voted, would remove from the Government the ability to comply with the constitutional duties in regard to the exercise of that power and that, in itself, would be unconstitutional. The Deputies may not accept that but that is the situation. I am not going to put a Bill before the House that is unconstitutional. In the development of the police authority, we have managed that balance in a way that ensures we have a strong authority with significant powers and significant opportunity to show to the public in terms of bringing in the Garda Commissioner and senior management and questioning them on the various priorities, their strategies and the various operations they are undertaking. Obviously, the gardaí get on with the operational aspects but we will have an independent policing authority that can hold meetings in public. That has been forgotten in the debate as well. It can have public hearings in regard to whatever topic it requires.
I want to talk about the code of ethics. It is surprising to say the least that no code of ethics has been established to date. There were obviously difficulties before my time in this office in producing that code and I want to say a few words about that. The requirement for the establishment, by way of regulations, of the code led to alignment difficulties with the strict provisions of the disciplinary regulations. Let us keep in mind that we have disciplinary regulations. In effect, there could be two sets of what could be described as disciplinary regulations, given that a breach of the code was intended to be a disciplinary matter. I do not accept either the point made by Deputy Wallace or by Deputy Clare Daly that this represents a watering down of the code. It does not and I will tell the Deputies why but I will first conclude my point. This would be, notwithstanding the fact the behaviour that could constitute such a breach would of itself be a disciplinary matter under the disciplinary regulations and so that would not lead to an effective disciplinary process.
If the Deputies read section 16, they will see what we will have. For the first time within 12 months of the establishment day of the new policing authority it will establish a code of ethics. That is a very important statement. It is a clear priority for the policing authority to establish a code of ethics within 12 months. If we read the detail, we note it will look at the standards of conduct and practice for members and provisions to encourage and facilitate the reporting by members of wrongdoing in the Garda Síochána. There is a range of people with which it will consult, which is a very good idea. I see nothing wrong with the range of people it is consulting.
A point has been made about human rights. Obviously, the authority will consult the Irish Human Rights and Equality Commission but of course it is open to an independent policing authority to examine human rights issues all of the time in its work. Of course it will do that. I take the point made by one of the Deputies about human rights standards and how important they are but I want to put a few points on record in regard to the Garda. As that Deputy said, the Minister of State, Deputy Ó Ríordáin, made the point that the Irish Human Rights and Equality Commission is already fulfilling its function in respect of the Garda Síochána and other organisations, but let us consider what is happening at the moment. Section 16 of the 2005 Act provides a revised form of declaration for persons joining the force, which specifically directs each new member to have regard for human rights in carrying out policing duties. That is contained in the 2005 Act, namely, the importance of human rights in carrying out policing duties. Garda training now incorporates human rights. Detailed information has been given to every member of An Garda Síochána about, for example, the European Convention on Human Rights Act 2003. The information that has been given to every Garda in the country outlines the key principles of human rights obligations as they apply to operational policing. Of course that needs monitoring but let us not pretend that human rights do not feature in Garda training or in the operational instructions that they have or that it is not provided for under the Act. It is contained there - that is the reality. There is also a Garda declaration of professional values and ethical standards. That has been published and worked on with members of the force. Human rights compliance is at the heart of the strategy statement for 2013 to 2015. Let us not pretend it is not there: it is at the heart of it. I am not saying that having something in guidance such as that means it will be implemented, and of course we must have ongoing monitoring, but it is certainly open to the Garda authority to do that. All operational Garda directives now make reference to the human rights principles applicable to the relevant instruction so as to remind all members of the force of their obligations in this area. The new training programme for Garda recruits, the BA in applied policing programme, incorporates human rights training, and training in human rights is also part of the ongoing professional development for members. There is a whole range of areas where at a practical, ongoing training and operational level human rights is at the centre, as it should be, and I agree with that. In developing a code of ethics, the authority will consult with the Irish Human Rights and Equality Commission, the Ombudsman Commission and others, as is appropriate. The policing authority will be established on 1 January 2016 and within 12 months, there will be a code of ethics for the first time, which will not be watered down.
The behaviour that would constitute a breach of the code is a disciplinary matter. Thus, the practical effect of misbehaviour is dealt with, in the disciplinary regulations. Making the breach a disciplinary matter would not alter the position that is comprehended by the disciplinary regulations. Minor infractions are liable to the regulations and more serious infractions are also dealt with under them. Behaviour that would amount to a breach of a code of ethics is, therefore, clearly comprehended by the regulations. For all those reasons, this is a step forward and not backwards, as the Deputy said. There are implications to a breach of the code of ethics, which would be comprehended by the disciplinary regulations, and there will be an independent body for the first time working and consulting with a variety of people before the work is completed.
The Deputy also raised a question about civilians. There are civilians in the organisation and it seems reasonable to have them liaise with the various representative associations. I do not see why they would be excluded. For all those reasons, I cannot accept the amendments. I am satisfied that the policy objective relating to the code of ethics is achieved in the legislation. Under section 16 of the principal Act, every member of the force declares that he or she will faithfully discharge the duties of a member with fairness, integrity, regard for human rights, diligence and impartiality upholding the Constitution and the law, according equal respect to all people and discharging his or her duties according to the law. That statement is an intention to act ethically. No more than in other areas of life, proper and good management is essential to be continually rigorous in the monitoring of behaviour. There have been failings but we are determined with the range of reforms that have been introduced that there will be ongoing improvements and ongoing implementation of the inspectorate report. That is helped by the position we are in where because of the fact we have a stable economy, we can invest in the Garda and give members the resources that will help them do the job properly. That includes recruitment, the vehicles they need to do their jobs effectively and efficiently around the country, having the appropriate specialists and increasing civilianisation in order that gardaí can be removed from doing jobs that are not appropriate to them, as the inspectorate report says, which should be done by other staff. Clearly, short, medium and long-term initiatives are required to respond to the inspectorate report.
The disciplinary process in An Garda Síochána is formalised and grounded in regulation. Those are the main points I want to make in response to the various issues raised.
First, the Minister asked for proof of what Deputy Clare Daly actually said. Tomorrow morning, I will give the Minister proof of district officer, Superintendent Pat Murray, reclassifying crime figures. This is an individual who has harassed and bullied a Garda whistleblower to an awful degree for a long time.
The Minister pointed out that we should not pretend that human rights are not part of Garda training. It takes much longer to become a hairdresser than a member of An Garda Síochána. In my opinion, and I am not alone, more training of gardaí is required, better resourcing of the organisation is required and better pay for members is also required.
The Minister cited Article 28 as one of the reasons for the inability to introduce depoliticised policing, claiming that there are restrictions on the extent to which it is open to the Government to delegate important functions relating to the executive power of the State to another body. In particular, this reference to the Constitution has been used to justify the fact that the Garda Commissioner remains exclusively accountable to the Minister rather than to the authority in contrast to the clear transfer of accountability promised in the heads of legislation in November 2014. Throughout the Bill, the structure is the same. The Commissioner is accountable to the Minister and the authority must run everything past the Minister and obey him or her at all times. If the Constitution can be used to make sure that we have a police force that is not accountable to the people, then it should be called into question. As has been argued by many legal scholars, it is difficult to address this reference to the Constitution as the Minister failed to inform the public what specific part of Article 28 she is referring to. She said the proposals in the Bill had been prepared in close consultation with the Attorney General. Will she please publish the advice of the Attorney General? She also stated her position on Article 28 was based on an interpretation by the courts. Will she inform the House of the case or cases to which she is referring to in order that we can at least attempt to understand and assess her line of reasoning? Did she specifically request senior counsel advice on this Bill? If so, when?
In regard to the code of ethics, the point is that it being a breach of discipline was in the heads of the Bill. It has been watered down and removed from the final draft. The Minister also mentioned the importance of monitoring but the word is mentioned only once in regard to the role of the authority. It has been removed from what was in the heads of Bill to a much looser oversight role, which is again a watering down. She can say there is human rights compliance in a pledge, but where is it in reality? Where were the human rights of Keith Harrison, a member of the Garda? Senior management pressurised his girlfriend into making a complaint against him. He had to go to the High Court to stop the action taken against him in that regard. The Garda representatives frustrated that action and the State ended up paying the costs of the case. Who will be held to account for the breach of human rights of that whistleblower?
The Minister has staunchly defended time and again the force when the Garda Inspectorate is on record as saying there are serious problems. She said the force is acting on the recommendations of the previous report but the inspectorate says the opposite. The information we are talking about in the Athlone district and the continued massaging of the crime figures is fact. I do not know why she is surprised by the information given by Deputy Mac Lochlainn because it fits in with what the Garda Inspectorate said about a systemic problem at the top of An Garda Síochána. I might not generally be a fan of the GRA or the AGSI but, this time around, the inspectorate complimented them for highlighting the problems at the top of the organisation. How can the Minister reform an organisation if she keeps the people at the top who were at the top when the problems emerged? The systemic problem remains and they are not being addressed. She is not giving the authority the power it needs to grapple with it.
Deputy Wallace made a number of points about the Government hiding behind the Constitution yet again, which is a little nauseating. We need answers to those serious questions that were raised about the Attorney General's role and her advice. Can we see the advice? If it was that black and white, why did the Government not change the Constitution in this regard when it had the opportunity with all the other referendums? The idea of an independent Garda authority is a little more important than the age to run in a presidential election and so on.
These are very serious issues and every time we raise them here, new information comes out. I am shocked that the Minister is not willing to say on record now that it is a disgrace that it was not until Deputy Wallace went on record in the House that the Garda authorities handed over the files on the case of Keith Harrison to GSOC. That is what happened. We are dealing with a force which is undisciplined at the top and this Bill will not equip an authority to deal with it properly.
I will provide the evidence to the appropriate body but I am asking the Minister to request that the Garda Inspectorate immediately review all terminations of penalty points in 2015. In January, the GPSU completed its audit, which examined the issue of statutory exemptions of emergency vehicles that allowed members of the Garda Síochána to avoid penalty points. It considered both the latter and the issue of an evader unit. I am asking the Minister to immediately ask the Garda Inspectorate to review all terminations of penalty points based on statutory exemption of emergency vehicles to ensure they are terminated properly. I will not name the senior garda I mentioned; he is a superintendent and has had three terminations of penalty points. He was listed for eight separate offences and I do not see any evidence he has accepted or been issued with penalty points for any of those. On three occasions prior to 2015, he had penalty points terminated at different locations. He has also had penalty points terminated in 2015. I am pretty certain he did not incur those in the pursuit of somebody involved in criminality. I am happy to co-operate with the Garda Inspectorate and pass on the evidence I have on the superintendent in question. That garda has had penalty points terminated on four separate occasions since 2009 and possibly more on which summonses were not issued when he should have gone to court and faced the appropriate charges. If the Minister is so confident there is nothing to fear, will she ask for the Garda Inspectorate to be immediately allowed access to the PULSE system to review all terminations in 2015 made on the basis of statutory exemption of emergency vehicles to ensure every one was in order and occurred when a garda was in pursuit of a criminal. We would all accept it is absolutely fine to have penalty points terminated in those circumstances. Those are the issues.
I ask the Minister to show evidence of how she or a predecessor have accepted and implemented the recommendations made by the Garda Inspectorate over a number of years. The particular focus tonight is on penalty points.
I have already done what Deputy Mac Lochlainn has said should be done. I will remind him of the facts. In the interest of maintaining public confidence in the penalty points system, I put in place a further assurance and oversight mechanism, which I mentioned earlier. I appointed Judge Matthew Deery, former president of the Circuit Court, to act as an independent oversight authority of any cancellations and to look at the process. That role was created in addition to the ongoing internal audit. The judge is free to inspect at random any fixed charge notice cancellation and report his or her findings on the operation of the system to me. I put that in place and the Deputy will remember that we discussed it at committee and here in the House. I will receive his first annual report at the end of the year. I respect that the Deputy is saying he has this information but I do not believe he should under-emphasise the amount of work that has been done to change the system. We have discussed the radical changes to the operation of the penalty points system at committee, in particular the new criteria and the decrease in the number of people making decisions to three. These are in addition to the oversight that has been added and the internal audit. Those points are very important because that can be forgotten as a result of the focus the Deputy is placing on one particular person. It would not be acceptable if it was true and if there was not a good reason for it, namely, if it was not an emergency. I will have that report quite shortly, the purpose of which is to do the very thing the Deputy is requesting, namely, to have oversight and ongoing monitoring. If one puts a judge in and asks him to look at cancellations at random and how the system is operating and report on it, that is a good monitoring system. We will see what information the Deputy possesses.
Most fixed charges are being paid without recourse to court. Approximately 300,000 fixed charge notices for penalty offences are now issued per annum with an approximate overall payment rate of nearly 80%. We are also pursuing those people through the courts, for example, those who do not produce licences, and there are various other initiatives which we have discussed in another arena.
Deputies Clare Daly and Wallace have a particular view on the Constitution and interpretation of it but we obtained the advice of senior counsel on this. The Constitution states, "The executive power of the State shall, subject to the provisions of this Constitution, be exercised by or on the authority of the Government." That is precisely the point I have been elaborating on here - the implications of that constitutional provision.
It is the same Constitution-----
Deputy Clare Daly will not accept it and I understand that but we have had to take account of that in preparing the legislation and, at the same time, we have managed to produce a Bill and an authority that will provide a very important service. The Deputy talks about defending the system. I have said repeatedly that reform and change are needed. The Government accepted the last inspectorate report and looked at a whole range of initiatives that needed to be undertaken.
Ireland has a highly unusual degree of centralised control over its police service. As it stands, the Bill does not do much to change that or to change the politicisation of policing in Ireland. The Bill contains 137 references to the Minister, which is odd in legislation designed to facilitate an independent policing authority. A truly independent authority would determine and revise the priorities of the Garda Síochána without constantly having to get the approval of the Minister of the day. In Sweden, all Government authorities have enjoyed a high level of independence since 1974. Neither the Swedish Government nor individual Ministers have the right to influence the implementation of legislation or how an agency decides in a particular case. The proposed authority is only independent in the performance of its functions subject to the Act. However, according to the Act, all of the authority's powers and functions are either shared with or subject to the approval or consent of the Minister or Government. The Minister can issue directives or orders to the authority and the authority "shall comply" with these and "shall" set out to the Minister how it has complied with them. The Minister retains sole and exclusive powers and functions in many respects and often a full veto over the authority's powers. Therefore, political power over policing has not been relinquished. This is not comparable to the real independence and strength of other statutory bodies such as the IHREC or the Ombudsman, who answers solely to Oireachtas committees. The Garda Commissioner remains exclusively accountable to the Minister rather than to the authority in contrast to the clear transfer of accountability promised in the heads of legislation published by the Minister in November 2014. We had the same Constitution in November 2014 as we have now.
Why were these provisions included in the heads of the Bill given that the Constitution has not changed? Appointment of the Garda Commissioner remains solely the function of Government on the nomination of the authority of the person selected by the Public Appointments Service. The Minister alone will have the power to issue directives to the Garda Commissioner, compelling him or her to take particular action. The authority does not have the power to issue a directive, including a policy directive, to the Garda Commissioner or An Garda Síochána in general. The proposed legislation is deceptive in that it provides that the authority will have the power to appoint assistant commissioners, chief superintendents and superintendents. This power is also subject to the 2006 and 2014 regulations, which provide for the promotions advisory council and a detailed selection process by panels containing nominees from the Minister and the Garda Commissioner. It is clear that the authority's power in this regard will be merely a rubber-stamping of the nominee already selected.
The proposed arrangements regarding national security are neither impartial nor transparent as the Minister is proposed as the sole and final arbiter in any dispute on policing and national security. The definition of "national security" is impossibly broad and may contravene the requirements under the European Convention on Human Rights in this regard. This section is likely also unconstitutional as it permits the Minister to decide what is lawful and unlawful regarding the definition of "lawful protest". Under Bunreacht na hÉireann only the courts are permitted to decide what is lawful or unlawful. It is difficult, in the context of all the issues that have arisen in this area and the promises made in relation to reform and how things would be done differently, to credit that such an abysmal Bill is being put through this House. This is abysmal and disappointing legislation.
I move amendment No. 75:
In page 16, to delete lines 37 and 38, and in page 17, to delete lines 1 and 2 and substitute the following:
“(8)(a) The code of ethics, established in accordance with subsection (1) shall be binding on all members.
(b) The Garda Commissioner shall take such steps as are necessary to ensure that all members have read and understood a code of ethics referred to in paragraph (a) and that a record is kept of the steps taken in relation to each member.
(c) A failure to comply with any specified provision of a code of ethics referred to in paragraph (a) shall constitute a breach of discipline in accordance with the Disciplinary Regulations.”.”.
I am now required to put the following question in accordance with an order of the Dáil of this day: "That the amendments set down by the Minister for Justice and Equality and not disposed of are hereby made to the Bill, Report Stage is hereby completed and the Bill is hereby passed."
The Bill, which is considered to be a Dáil Bill in accordance with Article 20.2.2 of the Constitution, will be sent to the Seanad.