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Dáil Éireann debate -
Thursday, 9 Nov 2017

Vol. 961 No. 3

Garda Síochána (Amendment) Bill 2017: Second Stage [Private Members]

I move: "That the Bill be now read a Second Time."

I am sharing time with Deputy Lahart.

The last number of years have been very difficult for An Garda Síochána. Part of the reason they have been so difficult is that the force has been exposed to a series of events that have had the effect of damaging public confidence in the force. Before outlining some of those events, however, it is important to state that the Garda Síochána has many fine attributes. The men and women who serve in An Garda Síochána today are as committed and diligent as their forebears in the force who served during the last century. However, we must acknowledge that, perhaps because it is a different time, the Garda is being exposed to greater public scrutiny than was the case in the past. As a result of that greater public scrutiny, there has been a loss of public confidence in the Garda due to the events I will discuss presently.

I wish to acknowledge that when it comes to doing its primary job of fighting crime and protecting the Irish people An Garda Síochána does the job excellently. Recent events in respect of An Garda Síochána confirm that. Perhaps part of the difficulty for An Garda Síochána is that it finds the other aspects of the policing job, which require accountability, transparency and answering questions, difficult to deal with. The positive news, however, is the fact that it is an excellent force when it comes to fighting crime and defending the Irish people.

It is also important to acknowledge that politicians cannot simply state repeatedly that the responsibility to reform the force and to rebuild public confidence rests with An Garda Síochána alone. It is unquestionably the case that primary responsibility for trying to rebuild trust in the force rests with An Garda Síochána and particularly its senior management, but everybody has a role to play in this respect. Significant responsibility rests with the Government. The Minister, Deputy Flanagan, is new to the Department but since this Government came to power in May 2016 it has not come to grips with its responsibility for reforming and improving An Garda Síochána. That is not a criticism of the Minister but of the Government in general, in terms of how it has recognised and responded to the series of issues that have arisen in the force.

However, responsibility does not rest with the Government alone. All Members of this House have a responsibility, including the main Opposition party. We must recognise that the great power politicians in this House have is, first, to hold the Government to account and, second, to make laws. The Garda will only be reformed if we change the laws in respect of how it operates. That is not the only basis on which it can be done, but it will not happen without that. It is not just the responsibility of An Garda Síochána. It is also the responsibility of politicians. That is the reason I have put forward this legislation which we are now debating on Second Stage.

The series of issues that have given rise to a loss of public confidence in An Garda Síochána relate to matters pertaining to whistleblowing and the establishment of tribunals of inquiry. However, in my opinion the most significant damaging event that had an impact on public confidence in An Garda Síochána was the false breath tests and the convictions that took place as a result of individuals being prosecuted who should not have been prosecuted because they had already paid the fixed notice penalty. I should outline how we reached this point in respect of the false breath tests. On 23 March, senior members of An Garda Síochána announced that there were 950,000 false breath tests recorded on the Garda PULSE - police using leading systems effectively - system. At the time of making the announcement they stated that no single reason could be identified for so many false breath tests on the system.

That was an astonishing statement by An Garda Síochána. It was not acceptable or permissible for those members to make that statement and just leave it hanging. At the time my party stated that there had to be answers and accountability for it. Unfortunately, we got neither answers nor accountability. As a result, we made a significant and serious decision for the main Opposition party - we stated that we could no longer express confidence in the then Garda Commissioner. That decision was not taken lightly, but we made it due to the fact that there had been such a significant statement from An Garda Síochána yet there had been no answers as to how so many breath tests had been falsely recorded and there had been no accountability.

Subsequently, there was the investigation and inquiry conducted by Assistant Commissioner Michael O'Sullivan who reported in September 2017. He reported that rather than there having been 950,000 false breath tests, there was another half million, bringing the figure to 1.45 million false breath tests on the garda PULSE system. Assistant Commissioner O'Sullivan's methodology for this investigation was to examine approximately 2,100 checkpoints. He listened to some of the recordings of phone calls made by members of An Garda Síochána to the Garda information service centre after the checkpoints took place and on the basis of that assessment he determined that the figure in question was 1.45 million false breath tests.

Last week, the Policing Authority published the report by Crowe Horwath which it had commissioned into the matter. The report stated that the figure for false breath tests on the garda PULSE system was not 1.45 million but 1.85 million. That PULSE system has a total of 3.2 or 3.3. million breath tests recorded on it. This means that more than 50% of breath tests recorded on the PULSE system have been categorised as false by the Policing Authority and An Garda Síochána.

This House must take steps to deal with this issue. I introduced the Bill we have before us some months ago following the initial announcement by An Garda Síochána in March 2017 that there had been 950,000 false breath tests and since then, the figure has risen to 1.85 million. We need to do something, not specifically on the breath tests but to change the way that An Garda Síochána operates so that things such as this do not happen in the future. We keep telling An Garda Síochána that this cannot happen again, but if we want it not to happen again, we must change the law.

I will identify the particular sections in the legislation before the House. The first significant proposal is in section 2 of the Bill which provides for an amendment to section 41(a) of the principal Act, the Garda Síochána Act 2005, as amended by the 2015 legislation which established the Policing Authority. The Policing Authority is a significant addition. It is the mechanism that we should use to ensure that reform of An Garda Síochána takes place. The Policing Authority has been given certain functions and responsibilities by this House through the primary legislation by which it was established but we must recognise that under this, there was no obligation on An Garda Síochána to inform the Policing Authority about its audit into the false breath tests which was being undertaken across the country. That is why in section 2 we seek to introduce an obligation on An Garda Síochána to inform the Policing Authority about any matters which have required an internal review, audit or examination of the functions or operation of An Garda Síochána, and which were requested by the Garda Commissioner, deputy commissioner or any assistant commissioner. This means that only significant internal reviews and audits would be obliged to be reported to the Policing Authority. It is astonishing that the Policing Authority was not apprised of what was happening in An Garda Síochána regrading the false breath test review until the early part of this year. It was an issue which had been ongoing within the force since 2015 which is when the Policing Authority should have been informed.

In section 3, we seek to give power to the Policing Authority to be able to dismiss a member of An Garda Síochána if in the extraordinary circumstances of the case, the member's conduct or his or her continued membership or position would undermine public confidence in the gardaí and the dismissal of the member is necessary to maintain that confidence. This gives the Policing Authority a significant power, and it is a power that we believe it should have. There will only be real reform in An Garda Síochána when its members perceive that there is an oversight body with significant powers and responsibilities over the force. In section 4 we also seek to give powers to the Policing Authority to supervise the functioning of the Garda Commissioner's office and to supervise the discharge of functions by the Commissioner.

The final substantive section is section 5 where we seek to give powers to the garda inspectorate to be able, if necessary, to enter, inspect and review any garda station or premises without prior notification. We put these down because we think it will add to and build up confidence in the force once more. Gardaí are in the strong position that the public has faith in An Garda Síochána and want it to succeed. Confidence in the force has been damaged and we need to help in its rebuilding. This legislation will assist in that.

I will begin where my colleague, Deputy Jim O'Callaghan, concluded, namely in public confidence in the gardaí. Irish confidence in the gardaí has been maintained quite consistently. It is testament to the standing in which An Garda Síochána is held but it is not infinite and the force cannot take it for granted. I acknowledge and will elaborate on something which Deputy O'Callaghan said, and the Minister for Justice and Equality might pass it on to the Garda authorities, namely the gratitude felt in communities in constituencies such as mine for significant Garda successes. I would highlight some in recent months and am thinking of one in Citywest recently in my own constituency. A phenomenon that is also becoming more common, and has crept into our society without our noticing, is the presence of armed support units. Recently, in my local service station, I noticed a garda with a gun in his holster pass me as we were both buying coffee. The Garda has secured considerable wins. Gardaí patrol our city and they continue to keep the people safe. There was an incident recently involving the Kinahan gang where they put their lives at considerable risk in order to protect people.

The Garda has opened up in recent years. The role of the joint policing committee at local authority levels is a process about which they were initially reticent but my experience as a member of one is that the gardaí have become more open to the process in terms of engaging with public representatives and the public on matters which are important to them. Members of the public are no longer scared to have a go at gardaí at public meetings and at community meetings, which is something that would not have happened ten years ago. That is a healthy development. However, one does not want that healthy dialogue to pass a tipping point where it moves to a place of disrespect for the force.

The force, as a collective, may count its lucky stars that in spite of there having been almost 2 million false breath tests which have never been accounted for, no rationale has been given for it. From all the different organisations within the Garda - an investigative force, which has uncovered the most incredible evidence relating to crimes, secured convictions in the most phenomenal cases which have come before the courts, and secured prosecutions of criminals from all classes and none - no one has been able to explain why and how this happened or who initiated it.

The role of the Garda Inspectorate is expanded in this Bill. I want to focus on the Garda Reserve. Its numbers are dropping but out of the 120 or 130 pages in the original Garda Inspectorate report in December 2015, there were 80 references to the Garda Reserve. The report said it needed a champion in the Garda, that its role needed to be buffered, that there was a role for an officer corps, a cadet corps. None of these have been acted on in any significant way by the Garda. It will take the role of oversight bodies such as the Garda Inspectorate and the Policing Authority to ensure that happens.

I believe this Bill is timely, and very important in giving significant additional, necessary powers to the Policing Authority.

I thank Deputy O'Callaghan for the opportunity to engage with Members of the House on the critically important issues of Garda accountability and Garda oversight. I welcome the opportunity for Members to reflect on the role and work of the Policing Authority, which has been undertaking a most valuable programme of work since it was set up. While I acknowledge and appreciate that the Bill purports to provide the authority with additional powers in line with the recommendations contained in the Joint Committee on Justice and Equality's December 2016 report on Garda oversight and accountability, I regret that I must oppose the Bill now before the House.

My opposition to the Bill is primarily based on, but not limited to, the issue of its timing, which does not take account of the process under way through the Commission on the Future of Policing in Ireland or the legislation governing the Policing Authority, in particular section 62O of the Garda Síochána Act 2005, as amended. There are further serious difficulties with the Bill which I will have the opportunity to outline to the House later in my speech. I must draw the attention of the House to the substantial grounds that exist for opposing this legislation. It goes without saying that the Government is fully supportive in principle of the Policing Authority having appropriate powers in order that it can carry out its oversight functions in an efficient and timely manner.

A fundamental difficulty with this Bill is that it is being introduced at a time when the Commission on the Future of Policing in Ireland, which was established in April of this year following consultation with the party sitting opposite me, is undertaking a comprehensive examination of all aspects of policing in Ireland. That examination will consider all functions currently carried out by An Garda Síochána and the range of bodies with oversight and accountability roles, namely, the Policing Authority, the Garda Inspectorate, the Garda Síochána Ombudsman Commission, the Department of Justice and Equality, and the Government. I note in particular that Deputy O'Callaghan is on record as welcoming both the membership and the full terms of reference of the commission. He has committed his party to working constructively with it. The House will be aware that the commission is to report by September 2018 and may, in accordance with its terms of reference, bring forward immediate proposals and rolling recommendations for implementation in advance of its final report.

The terms of reference require the commission to bring forward proposals addressing the following five themes: the structures and management arrangements required for the most effective delivery of policing, including all functions currently carried out by An Garda Síochána; the appropriate composition, recruitment and training of personnel; the culture and ethos of policing; appropriate structures for oversight and accountability; and the legislative framework for policing in Ireland. I emphasise again that oversight and accountability is one of the five themes under consideration by the commission.

While I appreciate that the Deputy's Bill has been initiated in the spirit of trying to contribute positively to the overall governance and oversight architecture for An Garda Síochána, I strongly believe that progressing this Bill through the legislative process has the potential to cause uncertainty for the commission. This is particularly so in light of the fact that the commission is also required to examine the legislative framework for policing in Ireland. Having said that, I acknowledge that there is a serious need for further reform of the framework of governance for policing in the State. This is evidenced in the terms of reference set by the Government for the commission. There is a clear consensus in the House on the need for reform. I would have thought that there would also be a consensus on the methodology by which that reform might be identified and made effective, namely, on foot of the commission's report and subsequent recommendations. I take this opportunity again to encourage Members of the House to engage fully with the Commission on the Future of Policing in Ireland as it goes about its important analysis and consultation process.

Furthermore, I wish to draw the attention of Members of the House to section 62O of the Garda Síochána Act 2005. This section requires the Policing Authority to prepare a report on its effectiveness and the adequacy of the functions assigned to it by the legislation. The report can contain recommendations for improving the effectiveness of the authority and must be submitted to me, as Minister, by the end of this year. I am required to lay that report before the Houses. While it is, of course, accepted that the authority must have whatever powers it needs to carry out its oversight functions, it would be premature of this Legislature, which gave the authority the role of identifying any gaps in the legislation, to presume to know the answers before the authority has spoken. It would be far better to wait to hear from the authority and then to consider what legislative changes are required. It would then be for this House to decide whether to make such changes in the early part of next year or whether to wait for the commission's report in September. Instead, if this Bill were to be enacted in advance of the reports of either the authority or the commission, we would run the risk of being accused of once again failing to deal comprehensively, in a holistic way, with the accountability and governance of An Garda Síochána. Indeed, the very fact that we have commenced legislative consideration of the Bill could be construed as evidence of a fragmented and incoherent approach to the much-needed programme of reform of An Garda Síochána.

While it is clearly the case that lawmaking in the State is the exclusive prerogative of the Oireachtas, I feel it would assist our deliberations if the views of the Policing Authority on Deputy O'Callaghan's Bill were sought. I put on record my appreciation of the time taken by the authority to engage positively with the Bill and for providing me with its analysis. In its observations the authority demonstrates some concerns with the Bill, in particular about the implications for its independent oversight role should it be conferred with the supervisory or operational powers outlined in the Bill. In the view of the authority, the Bill has the potential to weaken the clarity in the existing statutory framework on the role and functions of the Commissioner and his or her responsibilities and accountability, thus compromising the independent oversight of the authority. The authority is also of the view that the Bill is premature at this juncture having regard to the ongoing work of the Commission on the Future of Policing in Ireland. It considers that the commission should be allowed to complete its work and produce its report. The authority also makes that point that it does not have any role in respect of the security of the State and that, accordingly, it would not be in a position to assume the responsibilities in the Bill which relate specifically to security.

To take up the point about security, I will now address what is perhaps the most serious difficulty with this legislation, namely, that it makes no distinction between policing and security matters. The Deputies will recall that during the passage of the Garda Síochána (Policing Authority and Miscellaneous Provisions) Act 2015, the Oireachtas decided that the authority was to have no role in respect of security services. Instead, the 2015 Act established a reporting relationship between the Garda Commissioner and the authority in respect of policing services. This distinction between policing and security is, in part, intended to address any constitutional issues concerning the delegation of the Government's executive powers under Article 28 of Bunreacht na hÉireann. However, the Bill before us makes no distinction between security and policing services and serves to give the authority oversight over the security functions of An Garda Síochána, which would put these provisions in direct conflict with the other sections of the Act which deal with the functions of the authority and would bring the Bill, and by extension the Act were the Bill to be enacted, into potentially difficult ground constitutionally. Even if there were no constitutional issues, the Bill makes no concession to the fact that other provisions in the Garda Síochána Act delimit the authority's remit to policing services. Instead, if we enact this Bill, the authority will both be excluded from dealing with security issues and be responsible for directing the Commissioner in respect of them. I fail to see how this can be right and proper.

I will now turn briefly to the main provisions of the Bill. I will outline some of the key areas of concern, always bearing in mind the concerns already outlined in respect of security matters. Section 2 requires the Commissioner to keep the authority fully informed of each and every matter which has required an internal review, audit or examination of the functions or operation of the Garda Síochána to be requested by the Garda Commissioner, a deputy commissioner or assistant commissioner. In practice, current legislation enables the authority to require the Commissioner to provide it with any review, audits or examinations which it considers necessary for the performance of its functions. I refer the Deputy to section 41A(2) of the 2005 Act, under which the authority can require the Commissioner to furnish "a report on any matters connected with policing services or the performance of the functions of the Commissioner relating to such services that may be specified in the requirement". Indeed the Commissioner is obliged to provide that report, which the authority can publish. This provision is in addition to the provision in section 41A(1) of the Act which requires the Garda Commissioner to keep the authority fully informed of matters appropriate to the functions of the authority and any other matters which the Commissioner considers should be brought to its attention.

Section 3 purports to enable the authority to dismiss summarily any member of An Garda Síochána where it forms the opinion that, by reason of the member's conduct, his or her continued membership would undermine public confidence in An Garda Síochána. Indeed the proposition that the authority could dismiss the Commissioner or a deputy commissioner was considered in the development of the 2015 Act but, on the basis of legal advice provided by the Attorney General, the Act instead provides that the authority can recommend to Government that a Commissioner or deputy commissioner be dismissed if the reasons for removal relate to policing services.

It is unclear how this provision which appears to provide the authority with power to summarily dismiss would work, having regard to the fact that the Act of 2005 contains detailed procedures to guarantee fair processes for any person concerned.

Section 4 of the Bill would require the authority to supervise the functioning of the Garda Commissioner's office, establish policies and procedures, cause to be published and made accessible to the public all sections of the Garda code and Garda operational policies and review the adequacy and appropriateness of policies and procedures that underpin the operation of An Garda Síochána. Under current law, the authority performs a wide range of functions that are most extensive in overseeing the corporate governance structures and performance of An Garda Síochána in the area of policing. Rather than critiquing the individual elements of the section, I draw attention to two key difficulties. First, the intention is that the Policing Authority would supervise the discharge by the Commissioner of his or her functions and could direct him or her in the management of his or her office in the performance of his or her functions. The authority, of course, is independent in its oversight. An Garda Síochána must report to the authority on policing matters, but it is fully accountable to the Government. To insinuate the authority into the management of An Garda Síochána in the various ways set out in the Bill would transform the role and function of the authority from overseer to supervisor or director. The question would then arise as to whom the authority would be accountable for the operation of the Commissioner's office. If the authority were to direct the Commissioner to do something that went wrong, who would be answerable? The second problem is that, under section 26 of the Act, the Commissioner is responsible for directing and controlling An Garda Síochána. He or she is required "to carry on and manage and control generally the administration and business of the Garda Síochána". The Bill proposes no amendment to section 26 that would recognise that what is proposed by the Deputy in section 4 would be in direct conflict with the provisions of section 26.

Section 5 of the Bill appears to be intended to provide the Garda Inspectorate with a right to enter any Garda station without giving prior notice to An Garda Síochána. Again, I do not know whether this is intended by Deputy Jim O'Callaghan, but this is the only provision that would require the Garda Inspectorate to obtain the approval of the Minister in order to carry out its functions. It is also unclear how the provision would interact with section 118 of the Act which requires that a written protocol be agreed between the Garda Inspectorate and the Garda on the provision of the information required.

The Government remains fully supportive of the Policing Authority. I acknowledge its hard work, determination and skill, particularly of its chairperson, Ms Josephine Feehily. We will continue to ensure the authority has appropriate powers in order that it can carry out its oversight functions in an effective and efficient manner. I believe, however, that it is reasonable to propose that any extension of the powers of the authority take into account its views on what additional role, functions and powers it needs and also the recommendations from the Commission on the Future of Policing in Ireland which are awaited. The Bill pre-empts both the views of the authority and the recommendations.

I read in the media that Deputy Jim O'Callaghan believes that if his Bill had been enacted, we would not have experienced the recent Garda controversies. I do not accept that at all. The roots of the controversies we have seen are deep cultural issues in An Garda Síochána that are not amenable to quick legal fixes. If they were, there would be no problem a Bill could not solve. As the Deputy will agree, however, having regard to his experience and expertise in these matters, policing is complex and responses to problems with policing have to reflect what is real complexity. Having said that, I welcome and share his genuine and sincere commitment to reform of An Garda Síochána. Where we disagree is on the timing of further legislative change. I am convinced that further ad hoc piecemeal legislative change at this point, even if the Bill before us did not have the deficiencies mentioned, would be wrong. Instead of implementing such change, we should allow the authority, having operated under the existing legislative framework, to tell us what it believes is needed and, perhaps more importantly, the Commission on the Future of Policing in Ireland to at least issue its report. We will then be in a position to consider comprehensive proposals that will address the governance and accountability framework in a holistic manner. I invite the contributions of Deputy Jim O'Callaghan and other Members of the House, be they on the Government or the Opposition side, on this important framework. In the meantime, while I fully understand and acknowledge the spirit in which the Bill has been introduced, I must, on behalf of the Government, oppose it.

To be honest, I am a little gobsmacked by some of the comments of the Minister. I refer to the idea that this House would be accused of implementing ad hoc measures and being slow in dealing with these issues, as if this was the first time we had heard about them. If anything, people outside the House have been accusing us of not acting swiftly and comprehensively enough. We already have a plethora of reports the recommendations of which have not been implemented. Therefore, it is a little ironic that we need to wait for the report of a commission on policing, a commission from which members have resigned because they believe the Government has not given it sufficient backing, when we have some excellent organisations in place that have demanded for themselves precisely some of the powers proposed in Deputy Jim O'Callaghan's Bill. What it comes from is not a fragmented and unco-ordinated approach but actually a very thorough and detailed public scrutiny and engagement with the existing oversight bodies in order to hear from them what the limitations and problems were for them in performing their policing oversight role. A number of the measures come directly from it. A criticism - I have a few - is that the legislation does not go far enough and take on board enough of the points made during the discussions.

Let me quote Mr. Patten who oversaw the reform of policing in Northern Ireland. The Patten report presents an illustrative backdrop to the circumstances in this state:

5.2 In a democracy, policing, in order to be effective, must be based on consent across the community. The community recognizes the legitimacy of the policing task, confers authority on police personnel in carrying out their role in policing and actively supports them. Consent is not unconditional, but depends on proper accountability, and the police should be accountable in two senses - the "subordinate or obedient" sense and the "explanatory and cooperative" sense.

5.3 In the subordinate sense, police are employed by the community to provide a service and the community should have the means to ensure that it gets the service it needs and that its money is spent wisely. Police are also subordinate to the law, just as other citizens are subordinate to the law, and there should be robust arrangements to ensure that this is so, and seen to be so. In the explanatory and cooperative sense, public and police must communicate with each other and work in partnership, both to maintain trust between them and to ensure effective policing, because policing is not a task for the police alone.

This very much sums up the challenges facing us in this state. We do not need a commission on policing to tell us that. We have seen with our own eyes the consequences of our not having the aforementioned arrangement in the midst of the deep cultural problems in An Garda Síochána. We had the very real benefit of the very detailed and comprehensive work undertaken on behalf of the State by the Garda Inspectorate which in its reports has referred to many measures which, if implemented, would serve as a beneficial tool in transforming policing. Therefore, we do not need to reinvent the wheel in that regard.

In the first instance I wish to deal with the Policing Authority. It is a little ironic that Fianna Fáil is bringing forward some of these measures now when it previously opposed legislation brought forward by Deputy Mick Wallace that actually included some of these provisions to empower the Policing Authority more than provided for in the Government's legislation. It is worth pointing out that there is a Bill from the last Dáil that got stuck on Second Stage. That Bill, a Garda authority Bill, was drafted by Deputy Mick Wallace. It would give much more far-reaching powers to the Policing Authority than the legislation before us. While we could be doing more to reform the Policing Authority, I welcome the measures proposed by Deputy Jim O'Callaghan in his Bill. As was said in the oversight discussions at the justice committee, the authority has very few hard, independent powers or sanctions under current legislation that could be imposed to compel compliance and co-operation. Seemingly, it has no function at all when it comes to discipline.

That is a deficit in the Bill. The Bill does not propose to give power to compel compliance and co-operation, which is unfortunate because, for example, we know about the long delay in clarification by the former Commissioner of unreliable and incorrectly reclassified homicide statistics and delays in providing information on breath tests and fixed charge notices among other issues. I welcome the fact that the Bill deals to a degree with discipline, giving the Policing Authority the power to establish policies and procedures for An Garda Síochána which would be binding on all members, and the ability to dismiss a member of any rank. That is necessary. However, it is one thing to give the Policing Authority powers; the issue is whether it will use them. The Policing Authority had the power under section 11 of the Act to recommend to the Government that the Garda Commissioner would be removed before she jumped ship and it chose not to use that power. When the members of the Policing Authority were asked by the justice committee in September whether they had given consideration to exercising the power the authority had as the scandals around the Commissioner developed and got deeper and caused so much damage, the reply was that they had a conversation about whether they knew what the section meant. That was an incredible response for a body charged with oversight of the police force.

I welcome the proposal in the Bill that the Garda Commissioner must keep the Policing Authority fully informed of any matters which have required an internal review, audit or examination of the functions of An Garda Síochána. Presumably, that would cover something like the internal review of breath test figures carried out by the Garda in 2015. If that arrangement had been in place then, who is to say that the process of getting information out of the Garda might have been expedited much more quickly than it was. Let us look at the Crowe Horwath report commissioned by the Policing Authority into breath tests and overseeing the Garda's own internal report. I found it incredible that practically all of the recommendations were to implement what the Garda Inspectorate said in 2014. I do not know what was paid for the report. We are back again to reports we already have so let us implement them. We have had report after report telling us to do what the Garda Inspectorate said. What is even worse is that one of the key recommendations of that report was that a working group should be set up under the Department of Justice and Equality, the Garda Síochána and other bodies to review fixed-charge notices and to deal with the broad range of changes that should be implemented in that regard.

When Assistant Commissioner Michael O'Sullivan carried out the internal review on the breath tests, his report to the justice committee was that the recommendation of the Garda Inspectorate report had not been implemented, yet in the Policing Authority report we heard that it had been up and running. Acting Commissioner Ó Cualáin and his hierarchy team said at the justice committee that the recommendation of the Policing Authority that a working group would be set up had not happened and then we heard that not only had it happened, but 22 of the 37 recommendations had been implemented. I found it incredible that the acting Garda Commissioner and his team or the people reviewing the situation internally did not know that.

The Policing Authority as currently constituted was hand-picked by the Government and there was not a proper selection process. The way in which that process was handled was deficient. I very much welcome the points in the Bill about implementing the Garda Inspectorate report. The request to go into stations unannounced came from the Garda Inspectorate. It has the unanimous backing of all groups on the justice committee. We think that is very much overdue.

It is somewhat regrettable that we do not have all of the accepted changes that are necessary in terms of GSOC. When GSOC came before us, it asked for substantial changes in law to allow it to do the job that it was set up to do, namely, holding gardaí against whom there are complaints to account. GSOC highlighted a whole number of areas of legislative deficiencies which in fact the previous Minister, Deputy Fitzgerald, also agreed were deficient. It is unfortunate that there are not any proposals to do that in this Bill but I hope that is something we could address on Committee Stage. I very much welcome the proposals that are there and I am sorry there are not a few more.

My party has been calling for Garda reform for well over a decade and we have not been doing so from an ivory tower. Our demand for reform is very much rooted in an understanding of why the communities we serve need policing and who loses out if society is not properly policed. It is not enough to say that poverty produces crime. We need also to understand that our disadvantaged communities are also the biggest victims of crime. From minor break-ins to more serious anti-social behaviour to the shocking level of gangland homicide, crime is concentrated where vulnerable people can least afford its consequences. The reason we want reformed policing is because we want effective policing and the reason we want effective policing is because neighbourhoods in need are entitled to a policing service that safeguards their communities.

This Bill is a welcome contribution to the ongoing debate. We support the general thrust of it, although naturally we have some concerns and would propose some changes. At its heart the Bill proposes to grant enhanced powers to the Policing Authority in overseeing the performance of the Garda Commissioner and the Garda Síochána. That much is desperately needed.

The Labour Party's Garda authority policy dates back to 2006. We freely acknowledge that the legislation we enacted in government, which finally created a Policing Authority, is by no means perfect. Fine Gael's commitment to meaningful reform of policing in Ireland was, to put it bluntly, questionable, as was the commitment of the permanent administration, the Department of Justice and Equality. As an example, let us look at what happened to the 2015 report of the Garda Inspectorate. It proposed a radical shake-up but it was given a speedy burial by the Garda Commissioner, the Minister and the Department. The Department simply does not see securing Garda accountability as a core role. Sometimes, the gardaí's best friends are in truth their worst enemies. One cannot support and assist the Garda Síochána today if one does not insist on holding it to modern standards of accountability.

I wish to refer to one issue that continues to operate as an impediment to serious public debate about the design of the institutions of State. I refer to the legal advice to the previous Government that under the Constitution policing belongs inherently to the Executive branch of Government, in other words, that it would be unconstitutional to remove the Minister and the Department from centre stage in the control of policing. We have heard some echo of that advice again today. We are told that the powers of the independent Policing Authority must, constitutionally, be circumscribed and core powers must be retained in the Department of Justice and Equality.

I am all in favour of a close and confidential role between the Government and its Attorney General but when it comes to legislating for the oversight of policing, the Government's legal advice about what the Constitution will and will not permit cannot be kept secret from the legislators. One cannot stymie desperately needed legal reforms by relying on legal advice if one refuses to publish it. I say that because other eminent lawyers do not see where this particular argument comes from. It is, after all, asserted in the context of a constitution that makes no reference, even in passing, to policing and also in the context of a common law tradition where policing was more usually seen as a branch of administrative or local government law. If we look at other countries with our legal system and similar written constitutions, we can see police forces operating at federal, state, county and municipal level. None of those states has encountered the argument that is foisted on us here, namely, that, uniquely of all our services, it would be unconstitutional to remove policing from under the thumb of Government and place it under independent oversight. In particular, in that home of the purest version of the doctrine of the separation of powers, the United States of America, there are more police forces than one could shake a stick at and no one would seriously argue that they are all constitutionally attached to the executive branch of government. This perhaps obscure and homegrown legal argument is the reason our law says that the Garda Commissioner must be appointed, and may only be removed from office, by the Government. We need to get to the root of this legal argument, which the Government relies on to insist that it must continue to remain central to the control and management of policing.

Deputy O'Callaghan's Bill does not seek to do this. To the extent that it seems to accept the status quo, the Bill is a stopgap measure.

More generally, public confidence in the ability and credibility of Garda management has been seriously undermined. In particular, Garda management has shown no ability to respond effectively to the modernisation agenda championed by the Garda Síochána Inspectorate. The problem here is not simply cultural - this is the expression senior gardaí often use - but structural. We still do not have any body with the power, duty or capacity to bring senior Garda management into the modern age. This is an age in which effectiveness, efficiency, openness, transparency and accountability are expected and delivered. Thus, we need the Policing Authority to take account of the series of impressive reports from the Garda Síochána Inspectorate and to insist that they are implemented by the Garda Commissioner. I do not mean simply that the authority should supervise the Commissioner - that is a vague concept to insert into statute. The authority should have power, having adopted an inspectorate report, to direct the Commissioner, by order, to implement the report.

I do not believe all structural reforms must await the report of the Commission on the Future of Policing in Ireland. Nor do I believe that the reports the inspectorate has already published must be put on ice pending another review and report. The reports make sense and they should be implemented now. Moreover, the authority should be given the power to insist on it.

Of course, we also need the independent policing review. I hope it will be both radical and comprehensive. I say as much because the Labour Party's reform agenda was never simply about senior Garda management. Our 2006 policy document called for a Garda authority and a new model of community policing to travel hand in hand. These initiatives have been ostensibly adopted but they are both still very much works in progress. We have far more to do before communities can say that they have a real sense of shared ownership of and input into the policing of their neighbourhoods. I hope the commission will make proposals for structures and arrangements to promote policing that are effective and efficient as well as fair and impartial. We need a policing service that is fully accountable to the law and the community.

The reform agenda is long. We need new members recruited to a force that is efficient and effective, one that uses modern equipment and policing methods to ensure the best possible results. We need a serious look at Garda formation and training. For example, would the college in Templemore serve us better if it was merged into a multidisciplinary third-level institution? More broadly, we need a wide range of educational, social and economic measures aimed at ending social deprivation and alienation. We need far greater urgency in tackling now the conditions that will cause crime in future. A serious concerted effort now can target young people most at risk.

Gardaí are the primary guardians of the community. They must be, and be seen to be, a part of the community. As the first Garda Commissioner, Michael Staines, put it, "The Garda Síochána will succeed not by force of arms or numbers but on their moral authority as servants of the people." Our ambition should be for a transformed service that enjoys acceptance and support throughout the community. There must be no piecemeal reacting on the hoof and no more ad hoc damage limitation. Above all else, we need a changed mindset of the Government and within Garda management.

I wish to begin by stating that we will be supporting Deputy O'Callaghan's Bill, perhaps with some reservation. In any event, we will be happy to support the Bill to enable it to pass to Committee Stage.

Public confidence in the Garda Síochána is at an all-time low. We have seen controversy after controversy-----

That is not true. It is not true at all.

The Minister should please allow the Deputy to speak without interrupting.

It is a question of fact.

I hope the Minister will respond and I am sure he will rebut what the Deputy is saying.

Does Sinn Féin have confidence in the Garda? It is not right to say the public does not have confidence in the Garda.

The Deputy has the floor. We will all do him the courtesy of allowing him to continue.

To be honest, I am not going to get hung up on that point. Whether it is the second-lowest or the lowest, public confidence is low. If the Minister can think of a time when it was lower, then he can instance it. It is the case that public confidence in An Garda Síochána is very low. To be honest, I think the Minister is being pedantic.

There is no doubt that the vast majority of gardaí are held in high regard by the public and are committed and dedicated public servants. What they have had to endure during much of this controversy is a cause of considerable frustration to each member.

When Garda representatives were before the committee recently, I made the point that I have seen the value of good policing at first hand. I have seen the impact that good-quality gardaí, especially in the community policing mould, have made to my community. They have made a substantial difference to the progress of the community in which I grew up. I can instance people I know now who are walking the streets and doing full-time work but who could otherwise have been in prison but for the work of good community gardaí. Unfortunately, that project and vision has been neglected in recent years. I regret to say that I have also seen instances of poor policing and policing that has undermined public confidence in the locality in which I grew up.

It is vital that the Government realises the opportunity to begin the process of restoring confidence in An Garda Síochána. The process must involve the right person being nominated and appointed to the position of Garda Commissioner. It is our view that the person should come from outside the jurisdiction. It would be very difficult for any person who is currently in the force to do the role in the current situation. Furthermore, we believe that the Policing Authority must be empowered to recruit a commissioner and to recommend the removal of a commissioner. Ultimately, we need a government that is not prepared to stand over major controversies, one that is committed to proper reform of An Garda Síochána.

It was telling that only a few weeks ago the chair of the Policing Authority, Josephine Feehily, effectively said it was apparently easier for gardaí to give false information than tell the truth in respect of the issue of the breath tests. This indicates an unhealthy culture and reveals that, whether direct or indirect, there was certainly pressure regarding the falsification of breath tests.

It has long been our view that there was a need for a body along the lines of the Policing Authority. We proposed the introduction of a Garda authority in 2014. We have long proposed a process similar to that which unfolded in the North with Patten was required here. Some of the steps that are necessary have been undertaken following political pressure from all sides of the House, and that is welcome. Although the Policing Authority that exists is not everything I would like it to be, I am of the view that it is making a contribution at this point. There is no doubt that it needs more powers. Perhaps it was not said explicitly, but it was certainly implied from Josephine Feehily's remarks at the justice committee that she believed that the authority was likely to request additional powers.

The Bill includes several of these additional powers. The point has been made that this is pre-empting a process. The Garda has stated that the force is undertaking reforms and pursuing reforms proposed under the Garda Inspectorate report. The recommendations contained in that report need to be implemented. The outstanding provisions of recent legislation that have yet to be enacted certainly need to be progressed. There is no question but that everyone is of the view that Garda reform needs to continue. We do not need to wait until the Commission on the Future of Policing in Ireland has finished its work. The pace of reform has to continue. That is likely to be flagged by the request of the Policing Authority for more powers. Therefore, I do not believe that this is pre-empting anything or out of place in any way.

There is a need for additional powers not only for the Policing Authority but also for various other bodies. This includes having responsibility for determining the priorities of An Garda Síochána and working with the Garda Commissioner in the preparation of annual policing plans. The authority should consult local communities and obtain their views and experience of policing and joint policing committees. We also believe that the power and scope of the joint policing committees need to be expanded considerably. The committees should have powers far closer in nature to those of the district policing and community safety partnerships in the North.

The authority should be empowered to conduct its functions without requiring the consent of the Minister. It should hold the Garda Commissioner to account and the Commissioner should keep the authority fully briefed on relevant matters. The authority should have full independent capacity regarding the appointments of the Garda Commissioner, deputy commissioners and assistant commissioners following open competition based on best practice in recruitment. It should also have the independent power to remove these senior officers and should be empowered to deal with complaints against them and discipline them.

I have a slight reservation regarding section 3 and the proposal to apply the provisions of the section to all ranks. However, I have an open mind on the issue and I am willing to listen to argument on Committee Stage. As I indicated, Sinn Féin will support Second Stage of the Bill. I fear the provisions of section 3 could result in the Policing Authority being clogged up with cases and consume time that could be better spent on oversight. I draw a distinction between senior ranks and other ranks of the Garda because the former have significant influence over the culture of the institution. I recognise, however, that the threshold in the section is set relatively high. A balance needs to be struck in this regard and I am open to further exploring the proposal.

On section 4, the supervisory powers provided in respect of policies and procedures are welcome. I also welcome section 5 and the proposal to give the Garda Inspectorate powers to enter, inspect and review any Garda Síochána station or premises without prior notification to any member of the Garda. Sinn Féin also supports giving a similar power to the Garda Síochána Ombudsman Commission. The strength and powers of GSOC are characterised by failings and weaknesses. While we need to return to this issue, GSOC requires the power provided to the Garda Inspectorate if it is to adequately pursue its functions and responsibilities. Sinn Féin will include a number of recommendations in its submission to the Commission on the Future of Policing.

The Minister referred to the proposal to confer on the Policing Authority powers in respect of security, an area in which it does not have powers. This issue needs to be examined by the Commission on the Future of Policing. Many of the problems in the RUC arose because there was a force within a force. The artificial distinction sometimes created between policing and security has the potential to create a similar dynamic. For this reason, it is essential that the oversight and interrogation role of an oversight body such as the Policing Authority encompasses all matters relating to policing, including security matters.

The legislation and other additional powers for the Policing Authority, which the authority is likely to seek in any event, are required to ensure full faith is restored in the police service and we have a service that is accountable, representative of the community it serves and enjoys the confidence of the general public. Sinn Féin will, therefore, support this legislation as it proposes to give additional powers to the Policing Authority.

I thank Deputies for their contributions. Although I have indicated on behalf of the Government that I cannot support the legislation, I am pleased the House had an opportunity to debate this issue, for which I thank Deputy Jim O'Callaghan.

I have always believed that we should have debates dealing with facts. For this reason, I reject Deputy Ó Laoghaire's comment in respect of public trust and confidence in the Garda. I expected he would at least source that comment but it is in keeping with many of the utterances from many sections of the Opposition in recent times, particularly the Deputy's party, that statements are made in the Dáil which have no basis in fact regardless of whether that matters.

I acknowledge that this is a very difficult time for the Garda Síochána. I also acknowledge that many of the practices thrown up in independent and internal Garda reports are unacceptable. This has also been acknowledged by the Garda Síochána across all ranks. Having met representatives of all the Garda associations in recent days, I acknowledge a stated intent on the part of the Garda to modernise and embrace the type of change envisaged by the Policing Authority and Garda Inspectorate. All the representative associations indicated their intent to engage fully with the Commission on the Future of Policing.

I reiterate the Government's full support for the Policing Authority and for the authority having appropriate powers to carry out its oversight functions in an effective and efficient manner. However, it is reasonable to propose that any extension of the powers of the Policing Authority or change to its fundamental role and function must take account of the views of the authority as to what additional powers it may wish to have. Unfortunately, as far as the views of the authority are concerned and having regard to the existence of the Commission on the Future of Policing, I must repeat my view that the Deputy's Bill is pre-emptive. That is a serious deficiency on the matter of our task here as we embark on the processing or enacting of legislation.

The Bill also has the potential to create internal conflict with the existing legislative framework establishing the Policing Authority. Perhaps the most serious area of potential conflict is the extension of the authority's remit into the area of national security. In this regard, I am not surprised by the comments of the Sinn Féin speaker given the disposition of that party.

I reiterate that while I welcome the sincere and genuine commitment of the proposer of the Bill to the reform programme of An Garda Síochána, I strongly believe we should allow the Policing Authority, having operated under the existing legislative framework, to tell the Oireachtas what it considers it needs and, perhaps more important, for the Commission on the Future of Policing to report. The latest date for receipt of the commission's report is December 2018 but it is open to the commission to produce interim or earlier reports. Having regard to the fact that the Oireachtas established the commission, Members have a duty to work closely with it in the matter of its work. I invite Deputies, either at parliamentary party level or individually in the case of Independents, to engage fully and make appropriate submissions or observations in accordance with the stated wish of the commission.

When we have the commission's report we will be in a position to consider a comprehensive package of proposals that will address the governance and accountability framework. That the commission is not likely to report until next year does not in any way halt the ongoing process of reform in the Garda Síochána.

I acknowledge Deputy O'Callaghan's sincerity and commitment and the spirit in which the Bill was introduced. However, having regard to the arguments I have made, it is the view of the Government that we will not accept further advancement of the legislation.

I thank all Deputies who contributed to the debate. It is important that we continue to debate issues concerning An Garda Síochána in the House.

Sometimes there is a tendency in Ireland for issues to boil up and then go off the boil, and we move from talking about the Garda to talking about the health services and on to some other topic. It is important that we keep the focus of this House on issues which are of public concern.

I will not get into the debate between the Minister and Deputy Ó Laoghaire as to the situation in respect of An Garda Síochána, but I will simply state, and I think everyone in the House can agree on this, that public confidence in An Garda Síochána has been damaged by recent events. I think we can also agree on the following statement, that it is the responsibility of everyone in this House to try to regain that public confidence and restore it to the very high level it was at before. It is still important to note that the public has great faith in the police force. It has been damaged, but we all have a responsibility in this House to try to see it improved again and to see it regain its proper place.

I listened closely to the contribution made by every Member here. In particular, I listened to the Minister. He indicated there are three grounds upon which he is opposing the Bill. The first is in respect of the timing. He says we should await the outcome of the commission on policing before we start introducing any legislation in the House. His second ground of objection was that he referred to section 62O of the Garda Síochána Act, as amended, which requires the Policing Authority to deliver a report to the Minister in respect of its effectiveness. He says we should await the outcome of that report. Third, the Minister referred to the fact that the Policing Authority had indicated that it has some concerns with the legislation that we are discussing this evening. The Minister then went on and looked at each of the sections in the Bill. I will respond to the Minister. By responding to him, I offer no disrespect to the other colleagues who spoke on the Bill, but since the Minister is opposing it, I wanted to concentrate on his arguments and submissions.

The first point the Minister mentioned was that we should await the outcome of the Commission on the Future of Policing in Ireland. Like the Minister and like most Members in this House, I welcomed the establishment of that commission. I welcomed its membership and I look forward to reading its final report when that is published in September 2018. However, simply because we have set up the Commission on the Future of Policing in Ireland does not mean that this House can go into a state of paralysis in which we twiddle our thumbs for ten months until the commission reports. We cannot do that. We would do a disservice to An Garda Síochána if we were simply to abdicate our responsibility for lawmaking to another, albeit welcome, body whose report we look forward to.

We cannot abandon our responsibility to make laws in respect of An Garda Síochána simply by awaiting the outcome of the report from the Commission on the Future of Policing in Ireland. We do not know to what extent the commission will make recommendations in respect of how all legislation should be dealt with. It may make a recommendation that the law should be repealed or the law should be reformed, or it may make no recommendations in respect of legislative changes. However, what we have to recognise is that there are problems in the systems within An Garda Síochána, some of which can be resolved by legislative intervention by giving the Policing Authority more powers. If that is a good idea today, let us do it. Let us not simply postpone that on the basis that we will wait to find out whether the Commission on the Future of Policing in Ireland thinks it is a good idea. On many occasions over recent years, and this is not the exclusive fault of the Minister's party, we have delegated our responsibilities to so many other statutory bodies that we get to a stage where we are nearly afraid to make laws because of whether these other bodies will support it or whether some review group we have set up agrees with it. We are elected here to make laws. Let us not be afraid to do it. The fact that the Commission on the Future of Policing in Ireland is considering what should be done on the future of policing should not be a bar on us now taking steps to improve the legislative basis upon which there can be oversight of the Garda.

The second point raised by the Minister was that, under section 62O of the Garda Síochána Act, as amended by the 2015 Act, the Policing Authority will prepare a report on its own effectiveness. That is all very well and we look forward to reading that report, but that should not put us into a state of paralysis. We have an obligation to pass laws and it should not be dependent upon what a statutory body will say to us in its annual report or annual review.

The third point made by the Minister was that he had consulted the Policing Authority and it had some concerns in respect of the legislation. I must say I was relatively optimistic when I heard it only had some concerns in respect of it. That is generally Government or statutory body speak for there being some good ideas in it. We need to recognise we have a responsibility. I have no proprietorial ownership over this legislation. I want to ensure that the legislation that is introduced is the legislation for the country. When it gets to Committee Stage, let us table amendments, as no doubt every member on the Committee on Justice and Equality will do, to see whether they can improve the Bill. If they do, I will be glad to agree to them.

The Minister also mentioned that I had previously indicated that if this Bill had been in place, none of the difficulties in respect of An Garda Síochána would have occurred. I do not know if I said that. If I did say it, that is not what I intended. What I would have intended is that, given section 2 of the Bill, we would have had a different outcome in respect of the Garda breath test issue. I was limiting my comments in respect of that test issue. The reason I said that is because section 2 would have required An Garda Síochána to inform the Policing Authority, in 2015, when the authority came into existence, of the fact that there were audits going on into the Garda breath test issue. Had that been done, it would have been to the advantage of An Garda Síochána. The Garda could have shared this problem with the Policing Authority, and the authority could have directed how this should have been dealt with. One of the reasons there was such concern about the issue of false breath tests was there was a public belief that the Garda did not handle the issue well when it first came to its attention in 2014 and also after that. There was a slight public concern that the Garda was, in effect, hoping that the problem would go away. If this legislation had been in place, the Garda would have been obliged to report the fact of the internal review to the Policing Authority. That would have been to the benefit of this issue and it would have been to the benefit of the public.

The Minister then went through each of the sections and made some comments, and I will briefly reply to that. He said that section 2 probably is unnecessary because there is already legislation in place which allows the Policing Authority to seek information from An Garda Síochána. The purpose of section 2, however, is different. It places an obligation upon An Garda Síochána to bring to the attention of the Policing Authority that there is an internal review, audit or examination of the functions or operation of An Garda Síochána. There was no reason the Policing Authority, in 2015 or 2016, would have asked the Garda whether it was conducting any audits or reviews into false breath tests. The authority had no information about that. If this law had been in place, however, the Garda would have been obliged to inform the Policing Authority about the internal review and audit.

The Minister also referred to section 3, which would give the authority the power to dismiss a member of An Garda Síochána. It is important to point out that, at present under the legal system, the Policing Authority can make a recommendation that a Commissioner be removed, and in that instance the Government has a responsibility to take into account that recommendation. I do not see the legal obstacles that the Minister says would exist in respect of giving the power to the Policing Authority to remove a member of An Garda Síochána. It is a power that, I suspect, would be used only in exceptional circumstances by the Policing Authority. Nonetheless, it is a power that should exist, as otherwise we are dependent upon the Garda trying to put its own house in order, and sometimes that can be very difficult when there are disciplinary issues involved.

The third point that the Minister mentioned was in respect of section 4. He said that this in a way would put the Policing Authority in a position whereby it would be managing the Garda Commissioner's office. I do not think so. The word that is used is "supervision". It is important that the Policing Authority establishes policies and procedures for An Garda Síochána and that it keeps an overview of the functioning of the Garda Commissioner's office. That would be to the long-term benefit of An Garda Síochána.

The final issue was in respect of the Garda Inspectorate. As Deputy Clare Daly mentioned, that is a recommendation that was made previously and it would be one that would assist the inspectorate.

I thank Members for their contributions to the debate. It is important that we do not merely decide to put ourselves into cold storage until September 2018 when we get the report from the Commission on the Future of Policing in Ireland. We should all contribute to that, but let us not forget what we are all elected to do. We are elected to make laws.

Question put.

In accordance with Standing Order 70(2), the division is postponed until the weekly division time on Thursday, 16 November 2017.

The Dáil adjourned at 7.40 p.m. until 2 p.m. on Tuesday, 14 November 2017.
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