For the convenience of Senators I have circulated a list setting out amendment No. 1 made by the Seanad, the amendment made by the Dáil to that amendment, a motion in the name of the Leader of the House and a motion in the name of Senator Lanigan. Discussion will take place on the motion in the name of the Leader of the House but the substance of Senator Lanigan's motion may also be discussed. If Senator Dooge's motion is carried, Senator Lanigan's motion falls. I remind Senators that they may speak once only on the motion.
Criminal Justice Bill, 1983: Motion.
I understand the amendment will not be put first.
No, the motion will be put. If it is carried Senator Lanigan's motion falls.
I move:
That the Seanad do agree to the amendment made by the Dáil to Seanad amendment No. 1 to the Criminal Justice Bill, 1983.
I second that.
Limerick East): Senators will recall that on Report Stage the House agreed to an amendment which I moved and which proposed that a commencement order would not be made in respect of certain sections of the Bill until a statutory Garda complaints procedure would be in operation and until new regulations on the treatment of persons in custody would have been made. These relate to detention in Garda custody, withholding information about guns or stolen property and inferences from marks, objects and so on.
The amendment was on the lines of amendments tabled by Senators Robinson and Michael Higgins, Eoin Ryan and Brian Hillery. I said at the time I did not see a need to have a legislative provision on the matter having regard to the firm undertakings that had been given by the Government and myself to have a new complaints procedure established and the regulations enforced before the provisions in question would come into operation. However, I moved the amendment in deference to the views of Senators and indeed to some views which had been expressed in the other House that it would be preferable to write those commitments into the Bill. The action taken by the Seanad to incorporate the undertaking in the Bill was widely welcomed in the other House. Having agreed on the broad principle of the amendment, the Dáil largely concentrated its attention on an effort to make the amendment somewhat more precise as regards the type of complaints procedure which should be introduced before the Criminal Justice Bill would be put into full effect.
After quite a lengthy debate, the Dáil agreed to an amendment which I moved to the Seanad amendment and which made it clear that the adjudication of complaints would be by a body other than the Garda Síochána. I considered that the incorporation of a provision in the Bill on the point might provide some reassurance to those who may have felt that the reference to a complaints procedure in the Seanad amendment may have been too widely expressed in so far as it could envisage the adjudication of complaints under the new procedure by the Garda themselves.
There was never any question of complaints being adjudicated on by the Garda Síochána alone as the undertaken given by the Government originally, and which I repeated all along, was to bring in a complaints procedure involving an assessment by an independent tribunal.
I mentioned here previously that the drafting of an amendment of this kind poses problems. For the amendment to be of value, a fair element of precision in the description of the complaints procedure is needed. On the other hand, there were dangers in specifying the details of a complaints procedure in a short form of words in the Bill as they might prove subsequently to be in conflict with the type of procedure decided upon by both Houses. This, of course, could have undesirable consequences. The amendment I have proposed takes the matter as far as it can reasonably be taken at this stage.
The next stage is the introduction of the Garda Complaints Bill and the draft regulations for treatment of persons in custody, when the Oireachtas will have an opportunity of determining exactly the kind of procedures to be adopted in those respects. Whatever provisions are ultimately decided on in regard to the membership of the complaints body they will have to comply with the undertaking of the Government that it must be completely independent in the exercise of its function. Thanks to the Seanad amendment we have had a useful preliminary debate in the Dáil on the form the complaints procedure should take. I undertook to bring the views expressed in the Dáil before the Government when the complaints Bill is being finalised. It goes without saying that the views of the Senators will also be fully taken into account.
The amendment made by the Dáil represents a small but important change in the amendment made by this House. It strengthens the commitment which the Seanad succeeded in having written into the Bill on the additional safeguards which have to apply before the detention provisions and certain other provisions can be brought into operation. Accordingly, I commend it to the House on that basis.
The amendment is to deal with two points which are inadequate in the amendment which came to us from the Dáil. The first point is that under the present situation an investigation could not take place into any complaint against a chief superintendent or person of higher rank. The second point is the question of who carries out the investigation. As regards the first point, which is probably the less important of the two but nevertheless a point of some importance, the question arises why exclude a chief superintendent or higher rank? Is there some reason for that? First, one can concede that the officers in the Garda of the rank of chief superintendent and upwards are all very reputable and highly regarded officers and it is most unlikely that any complaints will be made against them or that, if they are that they would be justified. For that very reason it is unnecessary to have them specifically excluded as is proposed in this amendment.
Merely mentioning their names raises the whole question of why they should be excluded. It will cause a certain amount of disquiet among the public. They will want to know why sergeants, inspectors and superintendents may be investigated while a chief superintendent may not be investigated. There will be a feeling that there is some secret reason which is not apparent as to why a chief superintendent should be excluded. It immediately raises a suspicion which is probably quite unjustified but nevertheless will lead to this kind of feeling among the public.
(Limerick East): They are not excluded. The Commissioner and Assistant Commissioner are excluded.
Not above the rank of chief superintendent? I am sorry, I misread it, but the same principle applies. If a particular rank is excluded from the investigation then the same argument will apply. People will wonder why they are excluded. They will be concerned that there is some reason for this which is not apparent and is not justified.
Another undesirable aspect of this will be that the Garda force will be opposed to the idea that certain ranks may be investigated while others may not. One problem which I am sure the Minister will have is getting through a complaints commission which will be acceptable to the Garda. I can well understand why they do not wish to have a commission that will be as powerful as it should be. If they accept it at all they would feel that it should apply to every member of the force. From that point of view and from the point of view of morale within the force, if it is to be accepted at all, they would feel that it should apply to everybody within the force. From those points of view, it is undesirable and unfortunate that distinctions should be made between officers in the Garda.
Another aspect of it is from the point of view of conducting an investigation. If the investigation leads to some action being taken, or failure to take action by an officer above the rank of chief superintendent, then it seems to me that the investigation will have to come to an end. Even though there may be a fairly good case, if it involves in any way the action of an officer above the rank of chief superintendent, even though the main complaint may not be against an officer of that rank, the fact that he is in any way involved would seem to mean that the investigation cannot take place. This could lead to a situation where every effort would be made in cases where complaints are about to be made or considered, to involve an officer above the rank of chief superintendent so that the investigation could be stymied.
From the point of view of the public's perception of the complaints commission, from the point of view that this seems to be limiting the action that can be taken, from the point of view of the morale of the Garda and from the point of view of the actual investigation which could be limited or possibly completely undermined by the fact that in some way an officer above the rank of chief superintendent is involved, it is most unfortunate that this limitation should be imposed. It is particularly unfortunate because it should not be necessary. I am quite sure that it will not arise and consequently it is unnecessary. If anybody argues the other way, that complaints against Assistant Commissioners will arise regularly, that merely proves the point that they should not be excluded from the complaints commission.
Another point raised in the amendment proposed from this side of the House is the question of investigation and adjudication.
I must take notice of a matter from Senator Lanigan at 3.30 p.m.
Debate adjourned.