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Joint Committee on Justice debate -
Tuesday, 15 Feb 2022

General Scheme of the Policing, Security and Community Safety Bill: Discussion

Apologies have been received from Senator Ruane. I will explain for the benefit of external attendees that there was a vote in the Dáil Chamber, so we have been slightly delayed in getting down to business. This happens - we are in a live parliamentary situation and it is par for the course. My apologies, it is unavoidable.

We move to our topic for the meeting, which is pre-legislative scrutiny of the general scheme of the policing, security and community safety Bill. We have completed one session on this and agreed to have a second because several associations were keen to have their say. We look forward to hearing what our guests have to say this afternoon.

On housekeeping, I remind members and, in particular, witnesses who may be joining the meeting remotely to please turn off their mobile phones or turn them to flight mode as, even though they may not appear to be interfering during the session, they can cause difficulties for the recording and transmission afterwards.

We are joined by the following witnesses: Mr. Derek Mullen, national secretary of the Civil Service division of Fórsa; Mr. Thomas Cowman, assistant general secretary, Fórsa; Detective Superintendent Seamus Nolan, president of the Association of Garda Superintendents; Detective Superintendent Mick Comyns, general secretary of the Association of Garda Superintendents; Ms Antoinette Cunningham, general secretary of the Association of Garda Sergeants and Inspectors, AGSI; Mr. Ronan Clogher, deputy general secretary of the AGSI; Garda Frank Thornton, president of the Garda Representative Association, GRA; and Mr. Philip McAnenly, interim general secretary of the GRA. We are also joined from the Department of Justice by Mr. Doncha O'Sullivan, head of the criminal justice governance unit, and Ms Anne Barry, principal officer in the policing legislative framework unit. They are all very welcome to the committee. We look forward to hearing their views in the course of the meeting.

The normal procedure is that each organisation will have one slot, as such. Our guests may share those slots or otherwise divide their time as they wish. So that members are aware, particularly those who may not be accustomed to the running of meetings, we normally then go in rounds with members. Each member will have an opportunity to ask questions. The responses to those questions can come from all or any of the witnesses, depending on who is most appropriate to answer. The time slot for members includes their questions and the responses of witnesses. It is the prerogative of members whether they wish to use their time for questions and answers or to make a longer contribution, thereby curtailing the time for answers. It normally works quite well. It is an efficient way of doing business.

To recap on parliamentary privilege, particularly given that several witnesses are attending from outside the Leinster House campus, witnesses are advised to be mindful that they should not criticise or make charges against any person or entity by name or in such a way as to make him, her or it identifiable, or to otherwise engage in speech that might be regarded as damaging to the good name of the person or entity.

If the statements are potentially defamatory with respect to any identifiable person, the witnesses may be directed to discontinue their remarks. We are well used to it at this stage but we are in a somewhat unique position as there are witnesses attending remotely from outside the campus. They should be aware, for their own sake, that parliamentary privilege may not bring the same immunity if challenged as it would if witnesses were in the building. We are where we are and we are well used to it at this stage. It is something of which to be aware.

Each organisation has a three-minute period in which to make opening statements. It is up to each organisation how many speakers they wish to use but it is three minutes per organisation. After we have heard initial comments from each organisation, we will invoke the rota system and there will be seven minutes allocated to each member for questions and answers. After the seven minutes expire, I will move to the next member and so on. If time permits and if members wish to get in a second or potentially a third time, that may be facilitated, but each member will get in at least once. We will go around a second or third time if needs be. It is a relatively straightforward system and it works well.

Without further ado I will begin in the order I have been given. Fórsa will have the floor first and Mr. Mullen has three minutes for his remarks.

Mr. Derek Mullen

To keep with the committee's time specifications, I have curtailed our contribution but I hope we can pick up on matters of substance during the questions stage. We thank committee members for the opportunity to address it on this important matter today. In our opening statement, we will attempt to summarise our key concerns with the policing, security and community safety Bill, as outlined in more detail in our written submission.

Fórsa represents approximately 2,000 civil servants across the Garda Síochána, including clerical, administrative, professional, technical and services grades most affected by this draft legislation, along with other colleagues represented by the Association of Higher Civil and Public Servants. All our members are extremely annoyed, frustrated and perplexed at the prospect of having their terms and conditions unilaterally changed through this proposed legislation without any meaningful consultation. They have made it clear they wish to remain part of the Civil Service and benefit from all the terms and conditions they currently enjoy as civil servants, including the determination of pay and conditions centrally, access to interdepartmental competitions and Civil Service mobility, to name just a few.

The proposal that the Garda Commissioner would take sole responsibility for all Garda staff will effectively change the status of our members in An Garda Síochána from civil servants to public servants. This is a step too far and it is neither appropriate nor warranted. Nobody has made the case that Garda civilian staff are hampered in their duties or that their status as civil servants impedes the effective running of the organisation. Therefore, these measures should not proceed as laid out in the draft heads of Bill until proper engagement takes place.

The legislation, if enacted, will also allow for civilian staff to come under the investigative remit of a new policing complaints ombudsman that will replace the Garda Síochána Ombudsman Commission. This will place unsworn civilian staff under the same rigors of investigation as a uniformed member with sworn powers. In short, such action would be excessive, disproportionate and disregard the existing recognised internal processes and guidelines that are afforded to civil servants in the course of their duties. Fórsa is also concerned that the draft legislation does not encompass new staff recruits. No such provision has been made in the draft legislation for the terms and conditions enjoyed by existing staff to continue to apply to new entrants. The absence of clarity on this matter is concerning and the legislation being contemplated is ambiguous to say the least.

In conclusion, it is our view that the draft policing, security and community safety Bill should not be used as a vehicle to bring about a change to the status and conditions of civil servants in a way the financial emergency measures in the public interest, FEMPI, legislation was in the past. That would only serve to further undermine the industrial relations process that has served us well to date. We therefore ask that the committee take on board our legitimate concerns and pause the legislative process in order for a structured and coherent industrial relations mechanism to proceed with proper engagement and consultation between all parties. Once again, I thank the committee for affording Fórsa this opportunity. We are happy to take questions from committee members and I will also rely on my colleague, Mr. Thomas Cowman, for specific detail from our submission.

I note what Mr. Mullen said at the outset and I appreciate that he curtailed his remarks for time purposes. I reassure him and all the witnesses that they will have an opportunity to intervene during our discussions. We have the written submission on file and it will be part of the deliberations as well. I thank Mr. Mullen for his brevity in the opening statement because we have found it more productive to get everybody through them quickly and have a good chat rather than the other way around.

Our next speaker is a detective superintendent, Mr. Michael Comyns, general secretary of the Association of Garda Superintendents.

Mr. Michael Comyns

On behalf of the Association of Garda Superintendents, I express my gratitude to the committee for accepting our submission and inviting us to this meeting. The Association of Garda Superintendents represents 168 superintendents in An Garda Síochána. One of the many responsibilities superintendents have is the investigation of allegations of misbehaviour by members of An Garda Síochána of lower ranks due to either internal disciplinary matters, alleged criminal wrongdoings or following receipt of complaints through the Garda Síochána Ombudsman Commission. We are charged with conducting investigations on behalf of and in conjunction with the Garda Síochána Ombudsman Commission. The criminal investigations conducted into Garda members are the same as any criminal investigations and the same powers are utilised.

With regard to the policing, security and community safety Bill, there are significant concerns about the establishment of the proposed board, which appears to be lacking in independence and any realistic degree of separation from the operational aspect of policing in this jurisdiction. We have substantial unease over the perhaps unintentional potential to populate the board with political contacts and associates. This could have grave outcomes in terms of politicisation, resulting in minimal transparency in separation of powers, stymying policing independence. The same concerns are held in terms of the composition of the proposed new authority. Being empowered to self-govern is perplexing and does not instil confidence in true oversight intentionality. The absence of detail, procedural clarity or its enunciation is tantamount to empowerment of poor practice, questionable governance and confusing standard setting.

The establishment of additional types of behavioural, ethical, discipline, conduct and performance policies in addition to the criminal law adherence aspects for An Garda Síochána seems to be overly complicated. The Bill is significantly deficient in detail and very ambiguous in these areas. Each Garda member is entitled to the same legislative, constitutional and human rights protections as any other person in this jurisdiction. There is full acceptance of essential adherence to standards set, to uphold the law in its various forms and the necessity to address any such failures by An Garda Síochána. This, however, must be balanced with ensuring the same protections exist for gardaí, should they be subject to investigation.

Procedurally the Bill appears flawed and vague and it seems to be utilising wide brushstrokes to address perceived issues. It attempts to afford additional powers to various bodies while creating an overtly bureaucratic, complicated and seemingly populist notion of oversight. The attributing of additional powers to the Garda ombudsman is imprecise, indistinct and not in keeping with the normal course of apportionment of investigative powers. This particularly relates to search, demanding names and addresses and proposed prosecutions. Failure to take cognisance of existing case law and precedent is extremely concerning.

Overall, the Bill has the appearance of double standard setting with an overtly critical hold on the activities of the Garda Commissioner in acute areas where political interference may be inferred.

The independence of An Garda Síochána, the unrestricted execution of policing powers and the conducting of policing functions may well be a major casualty if the Bill as it currently stands progresses through the various Stages to enactment. I again thank the committee for this opportunity. We look forward to engaging in addressing the many issues highlighted in an honest, inclusive and future-focused positive manner.

I thank Mr. Comyns. We now move to the AGSI. I invite Ms Cunningham, its general secretary, to make her opening statement, for which she, likewise, has three minutes.

Ms Antoinette Cunningham

Thank you, Chair. I also thank the committee members for the opportunity to present to it this afternoon. The AGSI represents almost 2,500 members of middle ranking gardaí, sergeants and inspectors, within the Garda organisation.

Most of us know that the policing, security and community safety Bill, has its genesis in the Commission on the Future of Policing in Ireland, CoFPI, report published in 2018. The report set out the reform and transformation of An Garda Síochána and stated that significant strengthening and a clear vision for policing was badly needed under the reform programme. The AGSI welcomes any reform and change agenda that sets out to serve the public and creates greater efficiency within the Garda organisation. However, the Bill does not provide a clear vision for change and instead it creates a multilayered, confusing and complex system of boards, bodies and agencies, some of whose functions are similar but all of which require independent and individual accountability, to such a degree that one would have question how the organisation can function effectively on a daily basis. The duplication of work is gravely concerning. It is vague and ambiguous about who answers to whom. The AGSI is most anxious that we are not seen as resistant to any reform agenda, but what this Bill does is creates a multilayered and confusing system where nobody is sure who accounts to whom. An all-too-easy line that we have heard politicians and others say in the past, is that staff associations are opposed to reform, when it is simply that the converse is true. The vital role staff associations can play in a reform agenda should be nurtured and valued as they are key stakeholders in the Garda organisation.

One of the issues the AGSI has with the Bill is the failure to give a context or rationale for many of the proposed changes, but it sets out as its basis to go far beyond what is recommended in the CoFPI report. The Bill raises serious concerns about the constitutional, privacy, human and other rights of the members we represent. There is a clear absence of fair procedure evident in the new powers proposed for GSOC. The association has had serious issues with GSOC and some of the investigations it has carried out on our members. The extended powers it is proposed to give GSOC seem to be without proper justification and seriously encroach on the basic rights our members feel that they are entitled to, rights that every other citizen in Ireland enjoys and which simply cannot be disregarded.

It is unprecedented that the Commissioner himself has serious reservations about the Bill and is quoted as saying it falls well short of our shared ambition for a transparent, accountable, trusted and effective policing service for the future. What is ironic here is that the Bill fails to give recognition to the fact that the CoFPI report recommended that GSOC should be superseded by a new independent body where incidents rather than individuals are investigated, to find fault where appropriate and to identify what needs to be learned. Instead, what the Bill has done is expanded the existing powers of GSOC to such an extent that they do not contain any constitutional safeguards for members of An Garda Síochána. Also of concern is the lack of oversight that is evident for the newly proposed GSOC. It seems it has no accountability in the Bill to anybody, and we do not know what action it will take if frivolous or vexatious complaints are made to it. There has been considerable disquiet in the AGSI with the length of time it has taken GSOC to investigate some complaints against our members. This Bill proposes that there would be no time limits to investigations. In some cases, one can only describe the conduct of GSOC as shameful, where it has left members under investigation for years. We do not know whether this is a competence issue, a process issue or what-----

I am sorry to interrupt Ms Cunningham. Unfortunately, there are time limits on opening statements, even if there are not on GSOC. I see from the opening statement that was submitted by the AGSI that Ms Cunningham has another two pages to go. If she wants to wrap up then she can come back in at length over the course of the meeting. She might conclude if that is okay.

Ms Antoinette Cunningham

I will come back to GSOC later if I have an opportunity. We feel that the Bill in its current draft creates more difficulties than reforms for An Garda Síochána and that it should be redrafted.

I am sorry that I had to cut Ms Cunningham off. It was no reflection on her submission at all. We are trying to be fair to everybody and to give them equal time. She will definitely have the opportunity to come in and out over the course of the next few hours, which I hope will give her a chance to say everything she wants to say as the meeting progresses. Last but not least, we have the Garda Representative Association. Mr. McAnenly also has three minutes to make his opening remarks. He is very welcome to the committee.

Mr. Philip McAnenly

I thank the committee for its invitation to the GRA to meet it today. We represent 11,500 rank and file members of An Garda Síochána. The general scheme of the policing, security and community safety Bill has caused great concern to our members for several serious reasons. I have outlined our concerns in the submission presented to the committee already. It is noteworthy that I was required to raise concerns previously with the failure to acknowledge the GRA, the largest body representing rank and file members of An Garda Síochána, when drafting Bills that can have a significant and sometimes catastrophic impact on their employment. Our submission again details the failure to recognise the GRA under numerous heads of the Bill and we emphasise the importance of rectifying this matter as the Bill progresses.

Head 8(1)(f) is unduly onerous and too ambiguous and ought to be removed. Head 11, noting the role of the board of An Garda Síochána, should also recognise the role of the GRA as a relevant stakeholder in representing our members within the parameters of our functions as set out in Head 48. Head 18 should include Garda members having the opportunity to be appointed in providing services to the board of An Garda Síochána. Head 36 requires the recognition of the GRA as a stakeholder in accordance with our functions, as set out in head 48 and the relevant regulations. It is alarming that the inquiry detailed under head 40(1) is not held in private. Statements made may require the protection afforded under head 40(5) and therefore privileged statements are envisaged. In the interest of fair procedure and natural justice there is a need in head 41 to clearly define in the legislation or in regulations made under the legislation, the procedure followed in forming an opinion about a member's conduct, before making a negative decision against that member.

When compared with other professions, the opportunities for our members are very limited. It is important in maintaining motivation within a disciplined force that opportunities for career progression are not restricted further. Therefore, promotion to ranks below that of chief superintendent in head 41(2) should be confined to current members of An Garda Síochána. Efforts to date under workforce modernisation have resulted in agreement between the stakeholders regarding the reporting relationship between members and more senior Garda members. The provisions of head 43 introduce risk in destabilising industrial relations and the GRA objects to any requirement that may result in a Garda member being required to account to a member of Garda staff of any grade. The agreed reporting relationships have served An Garda Síochána well.

It is noted in heads 139 to 156 that the powers of the Garda ombudsman are extensive, but with no provision for oversight. The operation and exercise of these powers requires oversight, given the nature and extent of the powers of the Garda ombudsman.

Head 225 should be reviewed to ensure the reward fund is maintained. The fund is an extremely valuable and important resource and should continue to operate as it is.

I again thank the Chairman and members of the Joint Committee on Justice for this valuable opportunity to present our concerns on behalf of the Garda Representative Association. We hope to have the opportunity to come back in later during the question session.

I thank Mr. McAnenly very much for that contribution and for keeping within time. We can now commence our engagement with the members. I thank all opening speakers.

I thank all our guests for taking part in the discussion this afternoon. From all the contributions I have heard to date, it is clear that gardaí, as represented by the witnesses, are not against change. That is good to hear. It is just a matter of how that change is adopted. I will start with Mr. Comyns from the Association of Garda Superintendents, who mentioned the proposals of the ombudsman. What concerns, if any, does Mr. Comyns have with regard to those proposed powers? I will leave that with the Association of Garda Superintendents, and indeed if any other contributors also want to come in, they should please feel free.

Ms Cunningham, representing the AGSI, covered a wide range of issues and kind of zoned in on the Garda Síochána Ombudsman Commission, GSOC. Perhaps she might expand on her members' concerns with regard to GSOC and where she sees that fitting into this proposed legislation. What does she or what do her members feel would be a better system?

I will put a similar question to Mr. McAnenly of the GRA. GSOC seems to crop up quite a lot in this. What are the GRA's members' experiences of GSOC? If Mr. McAnenly was drafting this Bill, what proposed changes, if any, would he make in that regard or, indeed, on any other aspect of the Bill as discussed so far this afternoon?

Mr. Michael Comyns

Mr. Nolan will answer the questions posed by Senator Gallagher on behalf of the Association of Garda Superintendents.

Mr. Seamus Nolan

I thank the Chairman and Senator Gallagher for this opportunity. We have many concerns in relation to the GSOC proposals, which I am going to summarise because there are so many. I do not want to eat into all of the Senator's time.

If we start with head 170(1), we have been severely criticised as an organisation with regard to the issuing of search warrants, which was highlighted very significantly under the Damache ruling, with which some people will be familiar. That prevents or prohibits the entry into premises based on warrants issued by the organisation of An Garda Síochána. The proposal under head 170(1) is that this now gives that authority to the Garda Síochána Ombudsman Commission and to its own authorised officers to issue that search warrant, which is completely contrary to the existing case law and legislation. We believe this now contravenes the Constitution and impacts the human rights and legal entitlements of any occupant of a premises identified as a Garda premises.

One of the main issues we are looking at there, and I know they were unforeseen, is that the Covid-19 pandemic found some of our members and personnel working at home. There is no definition of "Garda premises". Does that include the homes of our members? That is a complete contradiction to the inviolability of the home and dwelling house enshrined in the Constitution.

We must not ever lose sight of the fact investigations of an individual are what these are about. This is not about investigation of an organisation. As Mr. Comyns said in his opening statement, the individuals are the people in whom we are invested by investigating some of the activities and allegations against them. We treat those people with the same respect as we do any person we are investigating. It is important we are given the same respect by the legislation that is proposed here.

Head 170(3) deals with a whole lot of different issues around the notification of the Garda Commissioner. The Commissioner then is implicit in implied consent. He or she becomes in effect the witness for the prosecution. Under head 170(6) we have data protection concerns. Under head 170(8), we have search concerns around implications of the outcome of the searches.

We believe the employment law conditions are contravened by head 171(2) and that our employment conditions are completely ignored. There is no written documentation on the notification of inspection. There is nothing the person under investigation can subsequently examine to see and test for constitutionality, legality, proportionality or even proper grounding. Under head 171(3) there is an implied assumption that a person has information to disclose without concentrating on the fact that information can be demanded.

Finally, head 172(2) is silent on anonymous complaints and false, malicious or vexatious complaints. It is silent on them all. There is an assumption all the way through the legislation and the heads that the Garda members are guilty until investigation is complete. It is the presumption of guilt as opposed to a presumption of innocence that we find absolutely abhorrent. There is much more but I am conscious of eating into the time of all the other participants.

That wraps up Senator Gallagher's initial round. The Senator will, of course, have a chance to come back in again over the course of the meeting. For now, I am going to move on to the next speaker.

I thank the witnesses today for all their submissions. First, I know Fórsa's primary issue is around the change of the status of civilian staff working in Garda stations throughout the country and what that will do. I thank Fórsa very much. We met a couple of months ago with regard to this issue. We recognise it is a serious problem that really changes the status of so many people who work in Garda stations. Outside of this, clearly the view is it is to allow people who work closely with members of An Garda Síochána in Garda stations and who perhaps would have access to privileged information and so forth also to come under the remit of GSOC. I imagine that is one of the reasons for this. Does Fórsa see any other way in which that can be resolved apart from outside of the proposal in the legislation?

I will come back to the issue of GSOC. I take note, of course, that the status of members of An Garda Síochána at all ranks must be respected, and their status of employment and right to have due diligence in respect of how things are investigated and looked at needs to be absolutely ensured and guaranteed.

That said, predominantly the information coming to us as elected representatives from members of the public is that they are very dissatisfied with how GSOC engages in investigations. There is a view abroad, which the legislation seeks to address, that it is very much a case of the Garda investigating the Garda and that is not appropriate. I am sure none of our witnesses would consider that to be appropriate. As with any other body of the State, we need to have an independent means of carrying out this work and to ensure it is done properly. Is there an appetite among the representatives of An Garda Síochána to see progressive change that can give people more confidence than they have had to date? It is in the interests of all of their members that there would be an increase in public confidence because currently confidence is very low in regard to the complaints and oversight procedures in place.

Mr. Derek Mullen

I thank the Deputy. Over recent years we have been making progress in regard to civilianisation in An Garda Síochána, albeit slow progress. We have been critical of this draft Bill because we believe it overextends the power of GSOC in respect of the civilian members we represent. The Deputy asked if there are other arrangements that may suffice. We have tried to make clear in our opening statement and in our submission to the committee that civil servants working in An Garda Síochána and across Civil Service Departments are covered by particular codes, including standards in public office and the code of ethics. Where issues arise, there are very robust procedures to deal with them, specifically the Civil Service disciplinary code, which addresses breaches in regard to both ethics in the Civil Service and the Official Secrets Act. All of that has sufficed to date. The difficulty is we now have draft heads of a Bill which propose to take it much further and to define Garda civilian staff in the same way as Garda sworn personnel who have significant powers over and above all of the civil servants we represent. That is the difficulty for us, that there are procedures in place but to a great extent they are being ignored in the draft legislation.

I thank Mr. Mullen. Would any of the other organisations like to respond to Deputy Kenny's points?

Mr. Philip McAnenly

Yes, if I may. I draw the Deputy's attention to the extensive and multiple layers of oversight to which our members are subject. I would argue there are few employees and few professions at large who are subjected to the extensive level of scrutiny to which we are subject. We have our own internal disciplinary regulations and investigations, processes and procedures that flow from a complaint being made. Our members are subjected to civil avenues as well. As we outlined today, GSOC is a very elaborate and sophisticated option that is available. Increasingly, our members are being subjected to another distasteful form of scrutiny by members of the public, that is, mobile phone video recording of their performance which is then posted on various public social media platforms and oftentimes takes quite a filtered and unbalanced approach to what is posted. I would not accept for one moment that regulation is light in regard to the way our members are managed and supervised.

My view is members of the public would have a high level of confidence in how our members perform. That has been repeatedly borne out in many surveys and examinations canvassing the public view as to how they view members of An Garda Síochána's performance.

I thank Mr. McAnenly. Deputy Kenny has 15 seconds remaining if he would like to make a brief response.

In light of the 999 call situation and the numerous other situations that have arisen, there are serious concerns. To brush them aside is not appropriate. We have a lot of work to do here together. On behalf of the members of An Garda Síochána, at all ranks, we have to ensure we do the best for them as well. I believe, and I think it is the general consensus of the public, that what is currently in place does not work adequately.

Members will have an opportunity over the course of the meeting to come back in again.

I have a couple of questions that are open to any of the witnesses who would like to respond. By way of opening comment, I get the sense the witnesses believe there has been a lack of engagement around this legislation that we might discuss further later on.

Following on from the presentations made today, is it fair to say the witnesses' sense of the proposed legislation is that members of the public and, perhaps, suspects who are under investigation for a crime would enjoy better protections than rank and file gardaí or the force if under investigation under the proposed new body?

My second question is in regard to GSOC and has already been alluded to. Does anybody know why the GSOC process in terms of the outcome of cases takes so long? Is there a breach of the right to fair trial around this? As alluded to by Ms Cunningham, cases can go on for years and members are left hanging in that no man's land. Are there regulations around that? As I mentioned earlier, I sense annoyance from almost all of the witnesses here today in regard to this legislation. In terms of the formulation of legislation and the lack of engagement, is it normal they would not be consulted? What is the normal procedure in that regard? As I said, the questions are to all of the witnesses.

Ms Antoinette Cunningham

On the issue of engagement, there has been no engagement whatsoever with the AGSI on any of the proposals contained in this Bill. We only became aware of it when we discovered it on the Internet. There has been no consultation, which is regrettable because we feel we would have had something to offer. As regards GSOC, there is, it seems, no accountability by GSOC to anybody. It can continue its investigations for years. In some situations, members have been left in a limbo state for years, there has been a failure by GSOC to respond to letters from AGSI solicitors and members' questions have been left unanswered. There is no accountability around the reason GSOC can take so long to investigate a matter.

Deputy Kenny mentioned there is need for an independent means for investigating gardaí. What is actually needed is an efficient independent means of investigating gardaí. The system proposed in this Bill is not efficient. It does away with the principles of natural justice and fair procedure, it gives GSOC unfettered powers and it makes no provision for accountability or a time limit for the conclusion of investigations. Under the Bill as drafted, a garda can be investigated under performance, conduct and policy regulations, their legal obligations, disciplinary regulations, anti-corruption policies, breaches of the Garda code, matters of public interest, incidents of concern and, at all times, without the member being notified he or she is under investigation. There is a serious concern with regard to natural justice and fair procedures. It is an efficient system of investigating gardaí that is needed.

I wish to return to something Ms Cunningham said earlier. Did she say a garda could be under investigation without being notified and that there is absolutely no time limit as to when that investigation might conclude?

Ms Antoinette Cunningham

Yes. This is one of the real concerns we have when talking about fairness. Every citizen is entitled to fair procedure and natural justice. The expanded powers and remit of GSOC will now allow it to go unsupervised and unquestioned about what is considered a reasonable investigation. GSOC can start an investigation on an incident of concern without notifying the member concerned that he or she is under investigation. We do not know what constitutes an incident of concern as there is no definition. It now seems an incident of concern can emerge when somebody posts a social media clip that can be out of context, some keyboard warrior generates a public outcry because of it, and suddenly a member can find him or herself under investigation. If a person is investigated, the reason for the investigation should be set out.

On the final issue as to why we are so concerned about this, it seems the maximum powers are given to GSOC for a minimum disciplinary offence. GSOC uses the same powers to investigate something of a very serious criminal nature as it does for minor disciplinary issues. That is unfair because it is a completely different set of circumstances. What is worse, GSOC can categorise this as a formal investigation without defining what a formal investigation consists of. These are some of the concerns we have.

I see how it is becoming more difficult for gardaí to do their job in the context of social media. The Oireachtas Joint Committee on Tourism, Culture, Arts, Sport and Media, which I chair, has been considering the online safety and media regulation Bill, and I hope the setting up of the media commission will address some of those concerns. It does make it very problematic. If gardaí do not know they are under investigation, at what point are they made aware of it? They must be made aware of it at some point. Is it at the outcome?

Ms Antoinette Cunningham

The Bill does not state at what point. It states GSOC can open the investigation, notwithstanding it may not know the identity of the member. Once that member is identified, the Bill does not specify how or when the member should be notified. These are the problems we see in the Bill. This is a lack of natural justice. If a person is the subject of a complaint and becomes aware of it, he or she is entitled to know what the complaint is and the matter being complained of. Therein follows a person's rights. For example, if a person is accused of a criminal offence, he or she has different rights and entitlements compared with if it were a minor disciplinary issue. The Bill is silent on this and, for that reason, it needs to be reviewed.

Do any of the other witnesses want to respond to my any of my questions?

Mr. Philip McAnenly

The question is whether suspects and members of the public enjoy greater protection. I have to say, unfortunately, that is our perception and we believe that is the case. There are a number of examples I could give, and I will need to be careful I do not identify someone. I have spoken to and supported a Garda member in the past three weeks who has been suspended for more than a year. He is unsure as to the reason for his suspension. It is not unusual for a Garda member to be suspended subject to a GSOC process and to hear nothing for years, with no communication or contact from GSOC. That is unacceptable.

On the other question as to why GSOC takes so long; I have no idea. That is why we are seeking proper and effective oversight in the new legislation on the way GSOC will operate.

Mr. Derek Mullen

May I come in?

We are a bit over time but you can come in because you did not get a chance. It is useful to get different views on this point.

Mr. Derek Mullen

I will respond briefly to Deputy Smyth's first question. I have been representing civil servants for more than 30 years, and this is probably the second occasion we have seen legislation proposed or introduced in this way. The first occasion was the financial emergency measures in the public interest, FEMPI, introduced during the economic crisis. We were very critical of those measures and have spent quite some time in recent years seeking to roll them back.

We have not had any consultation. When the heads of the Bill were published, I could not point to one circumstance or meeting when there was appropriate consultation on this matter. That is why I made the FEMPI comparison. Over the years, I have become well used to organisations being established out of Civil Service Departments, such as the Irish Aviation Authority, for instance, and there are many other examples. We will shortly go through a process with the Irish Prison Service. There was consultation in all those circumstances. We have not had it on this occasion. We have questioned this. We are required under the terms of national agreements to comply with all the co-operation and consultation arrangements that are set down. In this instance, the employer has been cavalier in terms of its commitments under national agreements, and it is not acceptable.

It is very useful to have the views of those in the room. I thank Deputy Smyth for some excellent questions. Before I move on, I wish to clarify the consultation process. Will the Department clarify who was consulted on this legislation as it was drafted?

Ms Anne Barry

There was extensive consultation on the scheme over the past two years. We engaged extensively with the Garda Commissioner and the Garda oversight bodies. That engagement will continue during the course of the drafting of the Bill. We welcome these sessions. It is very useful to hear the views of other stakeholders, and we look forward to the committee's report and recommendations in due course.

Regarding Garda staff and the change of their status, the enactment of the Bill will not automatically lead to a change in status of existing Garda staff. The scheme provides for consultation with staff representative bodies and trade unions before that change of status occurs. It also requires an order by the Minister designating that Garda staff are no longer civil servants. The scheme includes a firm statutory obligation to undertake consultation at that point.

When Ms Barry refers to Garda oversight organisations, does that mean GSOC or who does that mean?

Ms Anne Barry

I mean GSOC, the Policing Authority, and the Garda Inspectorate. It is important to bear in mind also that the Bill seeks to implement the recommendations of the Commission on the Future of Policing in Ireland. That body engaged extensively with Garda members, consulted Garda associations and unions, and conducted extensive public consultations and so on to inform the deliberations of its report.

It is useful to note that.

There are two issues I want to raise. The first arises from what we have just heard. I certainly will not contradict anyone on what they said, but could we explore a bit more the issues of natural justice that have been outlined? Two things were said that I am concerned about. First, on the issue that a garda can be investigated by GSOC without being on notice of that, I do not necessarily see that as a problem. On the other things that have been said about a garda being suspended while he or she does not know why, that is abhorrent and I have a significant problem with that. However, in the ordinary course, just as how someone can be under criminal investigation without being on notice until or unless such time as his or her input it required, I do not consider that a problem.

On the references to natural justice, the same provisions are open to gardaí -or are they not; contradict me if I am wrong - in terms of exploring breaches of natural justice through the courts, for example. The GRA or the AGSI might like to respond to this, but on the first point, on natural justice, there is no fettering of access to the courts. If a garda believed he or she was not being treated fairly by the system, by GSOC or whichever oversight body it might be, he or she would have recourse to the courts. Therefore, is there really a problem with a garda not being on notice of being under investigation, quite apart from the issue of not being aware of why he or she has been suspended, which is much more difficult?

Does the Senator want to address that question to a particular organisation?

Any of the Garda representative organisations. It is for the sworn members rather than for the civil servants.

Mr. Philip McAnenly

I am happy to address that. Of course, there is access to the civil avenues that are available, but they are invariably very expensive, and we all know gardaí are not the highest paid employees in the country. I do not think anyone goes into An Garda Síochána to get wealthy. However, I have a number of concerns around the failure to observe principles of natural justice, due process and fair procedure.

Recently, I supported one member who had been on suspension for eight years. At the end of that eight-year process, he went into retirement. In the months before his retirement, it was found there no case for him to answer. He was innocent of the charges. However, it took eight years and the impact it had-----

I totally agree that is wrong. There is no defence for that. I am talking more about when somebody is under investigation and he or she does not know it. That does not pose a problem for me. I do not know what Mr. McAnenly thinks about that.

Mr. Philip McAnenly

There are two issues here. It poses a huge problem. I have supported members for whom we have actively tried to find out precisely why they have been suspended as well as precisely what the charge is they are required to answer.

Second, as I mentioned earlier, there seems to be a problem with GSOC moving through the procedures at a reasonable speed. Recently, I have supported members who have been suspended for more than one year with zero communication and zero contact from GSOC. That is unacceptable by any standard of decent, reasonable fair procedure or due process.

I agree. However, if a garda has been under investigation by GSOC for a period and does not know it, that in and of itself is not a problem. Would Mr. McAnenly disagree with me?

Mr. Philip McAnenly

I disagree. It is only fair and reasonable that member be aware he or she was being investigated.

That is something that would not necessarily be accorded to a member of the public who was under investigation for some wrongdoing. He or she would not necessarily be aware that he or she was under investigation, up to a certain point. Obviously, a conclusion could not be drawn under the investigation until such time as that person's point of view had been canvassed one way or the other. Do the same principles not apply to gardaí?

Mr. Philip McAnenly

Can the Senator give me an example of where someone would be-----

Let us say that I am being investigated for fraud by An Garda Síochána. All of the investigations would take place. My bank accounts might be examined, there might be surveillance and whatever else might happen by An Garda Síochána, and rightly. It would not want to tip me off to the fact it is on to my wrongdoing. Obviously, before the Garda sends its file to the Director for Public Prosecutions, DPP, it will want to interview me. It might want to carry out a search on my house or whatever. However, up to a certain point, I might be oblivious to the fact I am under investigation. I presume the same principles apply to gardaí. I would not suggest an investigation should be concluded without their knowledge. Does Mr. McAnenly understand the point that I am making?

Mr. Philip McAnenly

I accept that point. However, the cases to which I am referring would not come into that category at all.

Mr. McAnenly and I are agree on the cases mentioned. I do not know if Ms Cunningham wants to come in on that.

Ms Antoinette Cunningham

We have to go back to the principles of natural justice and fair procedure. A member of the public is entitled to natural justice and fair procedure. If he or she is being interviewed for a criminal matter, that person will be spoken to. However, before that person is asked any questions or has to supply any answers, he or she is given a legal caution.

What is happening here is GSOC has categorised something as a formal investigation without specifying whether it is criminal or disciplinary. It has then added a section that says a garda have to account to a member in the course of his or her duty. In accounting under that formal investigation, that garda's rights could effectively be denied to him or her, because if he or she is not aware it is a criminal investigation and the caution has not been administered, then information gathered, information the garda may have volunteered, could subsequently be used against him or her in a criminal investigation. That is wrong. We are saying that instead of formal investigation, it should specify whether it is criminal or disciplinary and the appropriate powers should be used accordingly. That is the point we are making. There is an absence of natural justice and fairness here.

Would Ms Cunningham agree, though, that an investigation could evolve and that-----

Ms Antoinette Cunningham

I would agree. What is said under 158(3) is that “A complainant under this Part need not identify the member of garda personnel who is the subject of the complaint”. That is fine. A complaint can open without the member being identified. However, the subhead fails to state how, when the member is subsequently identified, he or she will be notified at that point. That is where there is an absence of detail in the Bill.

If I have time, Chair, may I just mention the Civil Service aspect as well?

Yes, quickly.

I make a distinction between civil servants in ordinary Civil Service roles, if we can call them that, and those who are engaged in An Garda Síochána. There is a higher standard required of them. I wonder, in respect of the regulation of those people, if it is not fair they are subject to greater regulation and greater transparency in their activities. What was described earlier was a suggestion that including them as part of this regulatory structure was somehow unfair to them. I wonder if that could be addressed.

Mr. Derek Mullen

I will address that, if I may. We have made it clear that what we see as overreach in this draft legislation is a problem for us. All civil servants are held to a very high standard. That is the important point. How do we police that? Going back to the Senator’s previous question, there is a requirement in any investigative process that may lead to a disciplinary charge against a civil servant that that would be disclosed. I do not think that differs across the Civil Service, even in respect of members in An Garda Síochána. Looking at the various policies I spoke about earlier, and those policies are ignored to a great extent in terms of what is on the table before us, it is abundantly clear the people we represent can be brought up on disciplinary charges where they are in breach of any aspect of their employment. That can include sanction up to and including dismissal. That has happened from time to time, whether in An Garda Síochána or any other Civil Service Department. Our view is nothing additional is needed over and beyond what is there for civil servants. The standard is high. The standard should be high for civil servants. Any breach of those standards should be capable of being dealt with in a strong fashion. We have no difficulty with that.

Would Mr. Mullen accept Civil Service members working within An Garda Síochána are in a different category from somebody working within even the Department of Justice or the Department of Agriculture, Food and the Marine or wherever it might be, and there is a basis on which they should be subject to more stringent regulation in the context of the sensitive material to which they have access? Does Mr. Mullen disagree with me on that?

Mr. Derek Mullen

I disagree with the Senator’s point. You can look at examples right across the Civil Service of civil servants who are responsible for sensitive data, such as our colleagues in office of the Revenue Commissioners, or in the Department of Justice itself. Those who have powers, for instance, in our board of management unit or in roles that were taken over from An Garda Síochána, are all covered by the types of policies that have been referenced here today. Those policies are satisfactory. From time to time we will revisit them to make sure they are up to the standard that is required by the Civil Service. However, what is in this draft Bill is overreach for the civilian staff of An Garda Síochána. We have no doubt about that.

We will move on to the next speaker at this point.

May I make one supplementary point before we move on, with the indulgence of the Chair?

We are not taking supplementary questions. Every member will get a round of questions which will be for seven minutes. Rather than letting the Senator in now, because other members are waiting patiently to get in, I will mark him down for the next available slot and he will have the full seven minutes. Is that okay?

Perfect. I apologise that I will have to go in about 15 minutes, but I appreciate that the Chair is chairing very fairly, as he always does.

We will try to get the Senator in sooner if we can. Deputy Costello is up next.

I must say, as is typical of this committee, Senator Ward got in before me with the point I wanted to raise. I would agree with what he said about informing someone when they are under investigation.

As in the example given by the good Senator, there are many reasons a member might not initially be informed that an investigation is happening. This is quite common in a criminal investigation of an ordinary member of the public. I was struck by the comment that no other employee is subjected to as much oversight or accountability, but I am conscious that outside of the Defence Forces, there are no other employees who would have the same level of power and authority over other citizens and the same level of responsibility. As such, oversight is entirely appropriate.

On the first day of these hearings many questions were raised around GSOC as it is and would be after enactment of the legislation. It is important that we get this element of the Bill right. It is not just about the rights of those against whom complaints have been made, but also the rights of members of the public who have made a complaint. Article 3 of the ECHR puts a positive obligation on the State to protect the public from harm and a positive duty to investigate allegations. All of these matters need to be considered to ensure that the GSOC process is completely streamlined. By comparison, the complaints procedure north of the Border is a much more streamlined process, one with significantly fewer steps and where things do not get lost along the way. Whatever comes of this Bill, a streamlined, easy to operate system that vindicates the rights not only of those who have been complained about but those in the general public who have made the complaint, is essential.

There is a particular issue I would like to raise. On the first day of deliberations there was a great deal of discussion around the prosecutorial powers. The ICCL, for example, made the recommendation that prosecutorial powers be removed from An Garda Síochána. Structures have evolved over time. Many new front-line gardaí and managers are spending a day in court when they could be doing effective work in the station or on the streets. I would like to have the input of the AGSI and the GRA in regard to the prosecutorial powers of gardaí. For example, does the Bill get it right, is this something we should be removing or is it something that will free-up members to get work done?

Ms Antoinette Cunningham

There is no doubt that with great power comes great responsibility. The powers that members of An Garda Síochána have are always to be used in a way that is legal, proportionate, necessary and ensure full accountability and transparency for the use of all Garda powers. Equally required is an obligation to treat members fairly when they are the ones under investigation. What is lacking here is the fairness and reasonable test that would apply to members of An Garda Síochána that are equally enjoyed by all other citizens.

AGSI members are not looking for anything extra here. We acknowledge that here has to be a system to investigate members of An Garda Síochána who do wrong, but we would have to ask what powers is GSOC missing that now requires it to have these excessive, unfettered and unaccountable powers. It is not set out in the Bill why these additional powers of GSOC are necessary. We do not know why it requires all of these powers. The Bill is not clear on what is missing currently for GSOC to carry out its investigations. We do know that the system operated currently by GSOC is ineffective to a large degree. When one hears of members being suspended for years it is obvious there is an efficiency there. Is it a competence issue within GSOC? If not, what is it that requires investigations to go on for so long? As I said in my opening statement, the manner in which GSOC has treated members of the AGSI in terms of leaving them void of information, not answering letters, members being left in a limbo state and investigations going on for years is shameful. There is the principle of justice delayed is justice denied. It applies to citizens of this country. It equally must apply to members of An Garda Síochána. I say that by way of answer to the Deputy's initial remarks.

I would welcome the input of the AGSI and the GRA on the issue of the prosecutorial powers. The sergeants and inspectors are very often the members managing the procedures in court who could be doing other work. It is the views of those members I would love to hear about.

Ms Antoinette Cunningham

We have sergeants and inspectors who act as presenters in the courts. The AGSI has agreed with the reform of the courts procedure. We do not believe that our members should be tied up prosecuting court cases. We believe it is a matter for the Courts Service and for solicitors and barristers to prosecute in court. We would welcome engagement on the issue of where Garda resources would be better spent rather than prosecuting cases in court.

Would any of the other organisations like to comment?

Mr. Philip McAnenly

Yes, please. I agree wholeheartedly with everything Ms Cunningham has said. Rather than duplicate, I will make one or two points that are important. It is important to point out that while few people might have the power that members of An Garda Síochána have, it has been used proportionately and when necessary and in a fair, reasonable and appropriate way. I would also point out that few people are put in the position of members of An Garda Síochána to ensure public safety. I refer to policing the pandemic. The level of confrontation and conflict that our members have to deal with is not typical of what other workers have to encounter and deal with when they put on their uniform or work clothes to go to work on any particular morning. Those of us who saw the scenes at the top of Grafton Street in late February 2021 would not need persuasion or convincing that it is a different world that our members are inhabiting and working in on a daily basis.

I thank the representative organisations and Fórsa for their contributions today, which I found very helpful. I want to raise a few points. The general point was made that the structure envisaged by this Bill is a little clumsy in terms of who is accountable to whom and precisely where the authority lies. As somebody who devised the previous Garda Síochána Bill, which is still in law, I am a bit uneasy with the use of the term "authority" for the new body to be established. It appears to be a super inspectorate rather than a policing authority that would be generally known internationally.

I want to pick up on some of the contributions made. On GSOC, it has to be accountable to somebody. If a particular matter is being investigated for three or four years, whether or not the garda is under suspension but even more so if he or she is, somebody has to be accountable for that delay. To whom is GSOC accountable? When I read through this general scheme of the Bill I do not see a mechanism whereby GSOC has to report. There are 35 members of the force under investigation. In one case Garda X has been under investigation for three years and in another case Garda Y has been under investigation for four years. Somebody needs to question why the investigations are taking so long and why the member is in limbo and facing this investigation for so long.

I am sure it is the case that GSOC is under-resourced and may have on occasions bitten off more than it can chew. I am sure there are two sides to the story. From the point of view of accountability, it seems there is a very serious hole in this legislation in that I do not see GSOC being accountable to anybody for the way in which it executes its powers and functions in a satisfactory way. To whom it might do it, I do not know. Would it be the Secretary General of the Department of Justice who should be au fait with what GSOC is doing and can demand of it that it do something, desist or whatever?

At some stage, though, surely there must be a degree of accountability.

Returning to the point Senator Ward and Deputy Costello were making about notifying people under investigation, it seems to me that if a serving member of An Garda Síochána is being investigated this afternoon by An Garda Síochána, say for corruption, for example, then that member of the force will not be notified of the investigation. I do not see a major issue with notification being given to a member of An Garda Síochána because the investigation is coming from GSOC rather than internally. I do not see a significant question of principle differentiating these two situations. Therefore, when Ms Cunningham makes the point that at some stage a member of the force should be told whether he or she is being investigated, it has some force. The problem is this situation does not apply to any member of An Garda Síochána who this afternoon may be the subject of an investigation into involvement in corruption, drugs or organised crime. Nobody says the person concerned should be contacted and told he or she is under investigation. It simply does not happen. I would like some response on this point, from whoever might wish to address it, regarding in what sense is GSOC going to be accountable.

To echo the point made by Deputy Costello, it is not just gardaí who are interested in GSOC investigations. Without in any sense being prejudicial, we know of one shooting in north-west Dublin where it has taken months for GSOC even to interview the gardaí who carried out the shooting. I pass no judgment whatsoever regarding the circumstances and whether it was justified. That kind of situation would not happen if I were to be suspected of a shooting. The gardaí in Rathmines would not take three months to decide if they were going to ask me in to investigate such a situation. GSOC has a fair few questions to answer, and I would like to see this legislation containing some accountability for the organisation.

I ask the witnesses from the Department of Justice to respond to Senator McDowell because I think they are best placed to address it. The representatives from the other organisations have asked these same questions and expressed similar views themselves. We have observers on the call from the Department. Does Ms Barry wish to take this question?

Ms Anne Barry

GSOC is independent in the performance of its functions, as will be the proposed new Garda ombudsman under the new legislation. It is essential there would not be interference by the Minister. As a body under the aegis of the Department of Justice, however, it is subject to governance oversight by the Department, and arrangements are in place on governance agreements, performance delivery agreements and so on. A structure is in place around that in accordance with good practice in respect of the governance of State bodies.

Regarding this Bill, it is important to say it is recognised by the Commission on the Future of Policing in Ireland report that GSOC investigations are cumbersome and inefficient. The purpose of the changes in this scheme is to address that point and to provide for a more streamlined investigative process. The scheme is not therefore necessarily giving GSOC or the new Garda ombudsman more powers. It is instead moving away from the inefficient dual investigation process provided for in the 2005 Act, which requires GSOC to determine at the outset very little information in the context of whether a complaint is criminal or non-criminal. This scheme will bring a move away from that situation to one where there will be a single investigative process, which will be similar to the processes available to other regulatory-type bodies.

In addition and importantly in respect of how investigations have been described as taking a very long time etc., this new scheme will see a move away from the sequential approach in the 2005 Act, which requires GSOC to dispose of the criminal investigation first and then to follow on in sequence with any non-criminal investigation concerning disciplinary matters. It is important to bear in mind that the purpose of the significant reforms to the investigative process is to speed up investigations and to bring more transparency and efficiency to them. This aspect has very much been borne in mind by the Department of Justice in developing the legislation. I refer to it not just being in the interests of the Garda organisation and its members but also in the interests of complainants and the wider public in respect of ensuring there is competency and an effective and robust system to investigate allegations and complaints concerning Garda members.

Turning to the accountability front, GSOC as it stands has in place a process where members can lodge complaints concerning how they are being treated by GSOC. That is a standard type of approach whereby ombudsman-type institutions have administrative processes in place to take complaints from those engaging with them and, potentially, from complainants. There is also the possibility of a judge-led inquiry into the conduct of GSOC officers. Under the new Bill, that inquiry process is being expanded to include the conduct of the office generally and its policies and procedures. The expansion of that judicial inquiry mechanism picks up on a recommendation contained in the report of the Commission on the Future of Policing in Ireland.

There has been some discussion regarding the prolonged and inordinate nature of delays in respect of issues where the person is not under notification or is under notification. I will deal with the latter situation first, where someone has been notified of a serious complaint having been made against him or her. In such cases, it is incumbent on all concerned to throw all available resources at the issue. From my professional life as a lawyer, I know the subjects of complaints have sleepless nights for weeks and months on end. Their reputations have been put in tatters, and they might never recover, even if the people concerned get a favourable outcome. That is something we should all take away from this meeting. If the forces of law and order are to protect us all, then we must do more and do better to ensure people are not unduly suffering such inexcusable and inordinate prolonged delays. The process should not be going on for a day or an hour longer than is absolutely necessary. We are dealing with members of An Garda Síochána.

Regarding matters that are not notified to people under investigation, I take the point made by Senator Ward and others. We can cite natural justice in this regard. Some timeline should be put in place in this regard. In the cases of people not under notification, can they be watched day and night indefinitely? I think there should be some test of reasonableness in this context.

I refer to the subcategories. I understand fully the criminal aspect and Senator McDowell made that point. If there is prima facie evidence of concern in a case, then we cannot tip people off by telling them they are being watched. What about disciplinary matters, though? I am not so sure it is possible to throw the cloak of natural justice around a case that is a disciplinary matter and not be a criminal matter and decide the subject of the investigation will not be notified indefinitely and until the those carrying out the investigation feel like it. I have sympathies with the representative bodies in that regard. I would like to hear their responses on this issue.

It was said that members of An Garda Síochána should not be held to a higher standard than senior high-ranking civil servants. It is a highly entrusted job. Do representative bodies disagree with some speakers on that point? Would they accept that when there is an outcome and adverse finding, such as on a higher level in the courts, there are aggravated grounds for further penalty in sentencing due to the entrusted role An Garda Síochána has? As is the case with a priest or, for public optics, a judge, gardaí have an impact on society due to the precious responsibility they have. When a person is afforded all the realms and protections of natural justice, if it does not go right for that person in due process and fair procedures, would the representative bodies accept sentencing parameters which recognise that it is an aggravated factor? This is in respect of the minority of the wonderful people in the force.

The word "overreach" was used. Notwithstanding overreach, would it be a fair comment to say, on behalf of the representative bodies, at this stage in our journey in a modern society, that they should not only recognise but embrace independent judging and supervision? The days of the police watching the police are over. Do the representatives agree on that fundamental concept? While they may say there is overreach, I would not like that to be confused, and not wishing to put words in their mouths, with their having a difficulty with independent judgement and investigation of complaints. I hope they agree that, whatever about their concerns about overreach, there is nothing to be feared in a modern society from the fundamental point about not just recognising but embracing independent investigation and the vote of confidence that instils in the longer term in the trust and confidence society must have in An Garda Síochána.

Ms Antoinette Cunningham

Of course we recognise independence is important in investigations of An Garda. Public confidence has to be held in the highest regard and the public must have confidence in the systems of investigation, and independence is the key to that. However, those systems must be transparent for the members who are under investigation. Therefore, a balance needs to be reached.

In 2020, GSOC had a budget in excess of €11 million, 127 staff members and 1,900 complaints were open. You have to ask where the inefficiency is. Is it a confidence issue on GSOC's behalf if it has that sort of budget, that number of staff, and that number of complaints? What is ironic about this is that head 181 proposes that An Garda Síochána would provide training to GSOC which would then carries out the investigations into An Garda Síochána. Where is the external expertise in hiring people into GSOC, so that they come in suitably trained in investigative process? Head 181 states that as soon as practicable after the commencement of the head, the Garda Commissioner and Garda Ombudsman would get together and arrange suitable training to be provided to GSOC by An Garda Síochána to investigate An Garda Síochána. I do not know if any of the committee members see an issue with that, but it certainly seems a little ironic to us.

Public accountability and public transparency are very important. We would say there is no problem with independent investigation. GSOC's annual report of last year recommended a scheme, called the local intervention scheme, in which An Garda Síochána would deal with low level matters such as discourtesy. GSOC stated it was a system that was in place, that it worked very efficiently, and it stopped GSOC resources being tied up in very minor incidents of complaint that could be investigated internally. GSOC gave recognition and merit to that scheme. I again go back to what balance can be achieved if we are to make the most efficient system for everybody involved.

Some of the points I wanted to make were made by previous speakers. We reached out to some of the organisations here today, and I thank Fórsa for coming back to us and outlining its concerns about the issues relating to civilian staff. We had a good meeting with its representatives.

On some the comments made, I have points more than questions. I probably agree that there are, like the man from the GRA said, layered obligations and duties on members of An Garda Síochána, but that is in the context of the massive powers they have, not only for stopping and searching but also for arresting and detaining people for what could be regarded as a long period of time, up to seven days. It is very important and certain people in society are judged to a higher standard. I have seen that myself and I believe the Garda is such group, and that is only right. In general, I agree there is high confidence in An Garda Síochána. I have seen some of those surveys and I am not sure if the level is that high, but there is certainly a high level of confidence in gardaí.

On the notification of investigations, which others mentioned, obviously when someone is the subject of an investigation, without being facetious, if he or she holds objects that could become exhibits in a case, nobody will knock on that person's door to say he or she is under investigation. That would not happen with a member of the public and it should not happen with a member of An Garda Síochána. The normal judicial review option is open to members of An Garda Síochána and they have not been shy about using it in the past when they feel they have been subject to an unfair investigation.

We probably all share concerns about GSOC. I agree it can be cumbersome and inefficient, but I believe it is under-resourced. Time and again, members of the public and ex-members of GSOC have complained the organisation is under-resourced and there is an insufficient number of independent people to carry out investigations. No matter how fair a superintendent or inspector from a neighbouring Garda area might be, there is a perception among members of the public that this is not independent and, on balance, I probably agree with them.

On the opening statement by Ms Cunningham, I note what she said about the serious concerns her organisation has. I am not sure about the presumption of guilt aspect and I am slightly worried about one of the statements in regard to training and guidance being needed for people who do the wrong thing but for the right reasons. I am not sure what is meant by that.

I believe we all have concerns about GSOC. It certainly needs more resources. It needs to be more efficient and more independent, whether that involves hiring more people from abroad or whatever. It is certainly not meeting the requirements that are necessary.

Does the Deputy want anyone in particular to respond to him?

No one in particular.

Does anyone wish to comment on the Deputy's contribution? Otherwise, I will move on.

Mr. Seamus Nolan

Comments were made about gardaí investigating gardaí. Our general secretary, Superintendent Comyns, mentioned in his opening statement that we are charged with conducting those investigations.

That is not by choice. We are doing it primarily on behalf of GSOC. We would welcome if GSOC took over those investigations and that we would not be involved in them. We are not seeking to self-govern. We accept the regulations. We accept the various oversight bodies that have provided fairness and transparency.

A point regarding notification was made numerous times. Our comment on that is that it must be proportionate. There are some things we should be notified about and some things we should not be but it should not be a blanket cover-all, as it were, where nobody is notified about anything.

We welcome the expansion of GSOC but not its powers. We investigate on its behalf quite well already with the powers we have and we have quite a high success rate in prosecuting wrongdoing in our own organisation. That is the point we would make.

That concludes our opening round of questions. There is time for a round of supplementary questions for those members who wish to come in a second time. As usual, members need to be more concise in the second round of questions.

Briefly, on the point regarding the delay and the time it takes to complete a GSOC investigation, my understanding is that in most cases GSOC will second somebody from An Garda Síochána from a different division or district to assist with an investigation. I get the impression, and I think this would be shared by most public representatives who would engage in this respect at different times, that many of the delays are in that regard. Considerable time is spent finding somebody to assist with an investigation, they can be slow in investigating and that investigation can continue for quite a period of time. There are also confidentiality issues around that. We had a discussion at the committee about people being investigated who knew they were being investigated. My understanding is that often when it would not be appropriate for a person to know he or she was being investigated, the person knew about the investigation much too soon. There are issues in that respect that need to be dealt with. Reform of GSOC and oversight of it, as Senator MacDowell mentioned, are vital in respect of all that.

I take the point that GSOC has quite a large budget and a large staff and there is the matter of what is going on there. That point is not lost on any of us. We have all engaged with Mary Ellen Ring, who was chairperson of GSOC for many years. She was very approachable and it was easy to have a conversation with her on all these issues. She was always adamant that at the very top of the organisation they were doing everything they possibly could to make things happen faster and to progress things as quickly as they could, but they found great difficulty in getting the co-operation they required. That brings us to where we are today. We need to change all that. We all must be up for that change. We must all work together to do it. It is in the interests of all the organisations represented here and all their members that trust and confidence are restored in the processes that are in place.

Does the Deputy want to get a response?

No. I would just make those points.

That is fine. Those points were well made. I call Deputy Costello.

I want to make a general point. An issue with GSOC is that it is currently burdened with opaque Byzantine structures and procedures. Ms Barry from the Department acknowledged that and said the drive to correct that is part of the reason for the reforms proposed in this Bill. As such, it is not fair to accuse GSOC or imply it is incompetent especially when it, in light of our requirements for and discussion on natural justice, is not represented at the committee and cannot defend itself. It would be appropriate to consider having a third day of hearings to allow GSOC to come before the committee to speak to the allegations of incompetence and the Byzantine structures under which it is operating and where exactly those inefficiencies stem from, and for us to understand best how this Bill can correct that and improve the efficiency of any investigation system, which we would all agree is needed.

Mr. Derek Mullen

Chairman, may I come in?

Yes. Mr. Mullen would like to make a closing remark.

Mr. Derek Mullen

I would like to respond briefly to the last point that was made. Fórsa represents staff in GSOC. Much of our time today was spent discussing GSOC's role in investigations. I do not want to speak to that point but I would make the point in defence of the people in GSOC we represent that they operate under the procedures and legislation that are set down from time to time. They are hampered by resource issues, which is a point that was raised. It would remiss of me to let those comments go without defending the people we represent on those particular points.

I thank Mr. Mullen for that point.

That concludes our consideration of this matter and our question and answer session. I have a few closing remarks on housekeeping matters. I thank all the witnesses for their contributions. It was a very useful session. We had a previous session on it but it was worthwhile to have a second follow-up session to allow all the organisations that participated to have their say. Also, the engagement with members was very enlightening.

On a housekeeping note, other associations sent in written submissions but for one reason or another they could not attend, either because they were not in a position to come in or it was not possible within the timeline to incorporate them. Those include the Association of Higher Civil and Public Servants, AHCPS, GSOC, the Association of Garda Chief Superintendents and Dr. James Renwick. I thank them also for their written submissions, albeit it was not possible for various reasons to have them appear before the committee.

On a general note, as a committee we strive to have as balanced a discussion as possible and invite representative groups and stakeholders across the spectrum on any topic with which we engage. Any organisations that wishes to correspond with us or indicate to us their interest on a particular matter is welcome to do so. Many of the organisations represented did that ahead of today's meeting, which partly led to today's session. That is something we encourage and are happy to facilitate. If there are other groups who wish to have the opportunity to make a submission on any other topics, they are also welcome to do so. As a general rule, I would invite those groups to make themselves known in good time because we have certain parameters within which we work. It is regrettable another speaker who was due to participate, who I think would have made a valuable contribution, pulled out a fortnight ago, which was too late to replace that slot. That was a pity but sometimes these things happen.

As a general reminder, all the contributors and organisations represented today are in regular correspondence with the committee and are regular stakeholders. We have published for the purposes of good order a protocol. We drafted a document in terms of engaging with the committee with respect to timelines in order that everyone understands the deadlines to which we work when we issue an invitation, the written submission to be made and then the opening statement to be forwarded. We did that for the purposes of good order so that we can manage the committee most effectively and ensure we have the optimal engagement. That will be distributed to all stakeholders, including the organisations represented on this call. I ask them to be mindful we have certain timelines we need to meet to facilitate the committee working smoothly. All the organisations might take note of that. We will circulate a note on that.

That concludes our consideration of this matter. I propose, as would be norm, to publish all the statements received today on the committee’s website. Is that agreed? Agreed. The transcripts of the committee are always available as are the video recordings but some of the statements presented, the full details of which, may not have been delivered, will be made available.

On my own behalf and that of members, I thank the witnesses for taking the time to engage with us. I ask the members to stay on the call for a brief period as we have some internal housekeeping to do in private session. That concludes our deliberation on this important topic. There is a lot work to go into this still and from our engagement today, it appears to be more rather than less in terms of what needs to happen next. We will have continual engagement. We as a committee will produce our own report in due course. I am certain it will reflect all the points that were made today and more from the members' views, which probably most likely will coincide with many of the views expressed by the witnesses. I thank the witnesses again and wish them good evening. They may withdraw from the meeting.

The joint committee went into private session at 5 p.m. and adjourned at 5.09 p.m. until 3 p.m. on Tuesday, 22 February 2022.
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