Criminal Justice Bill, 1983: Motion (Resumed).

Debate resumed on the following motion:
That the Seanad do agree to the amendment made by the Dáil to Seanad amendment No. 1 to the Criminal Justice Bill, 1983.
—(Senator Dooge.)

On the question of investigation and adjudication, as the section stands at present the independent body would be able to adjudicate on complaints but would not be able to investigate them. This may sound reasonably satisfactory but, in fact, it could prove to be totally worthless because an adjudication body, if it has no evidence before it, if it has no witnesses before it, if it has no facts before it, quite simply cannot act. If it did attempt to act without adequate evidence before it clearly it would be actingultra vires and would be subject to appeals and so on. It is absolutely important that the body which is the complaints commission should have the power to investigate as well as to adjudicate. In most cases the Garda would be asked to investigate but in some cases it might be considered desirable by the complaints commission to make investigations of their own. This could, in certain circumstances, be absolutely necessary. It must be quite clear that the Garda who are sent out to investigate complaints, without deliberately failing to do their duty, may be inclined to drag their heels a bit. They may be inclined to accept explanations that in other circumstances they might not be so quick to accept. There are 101 ways in which an investigation can be carried out with less than the kind of dedication that is necessary. This is the kind of situation that could happen in the future.

What happened recently in the Kerry baby case is possibly an example of that. The Minister knows what happened and I do not, so I may be quite wrong, but the Minister said an investigation was taking place and that if it was not satisfactory he might have to set up a judicial inquiry of some kind. When he was asked about the investigation he said that nothing really had emerged as a result of it. This appears, on the surface, to be exactly the kind of case I have been speaking about. There was an investigation by members of the Garda, I think two chief superintendents, of a serious situation and they appear to have been unable to bring any facts before, in this case, the Minister who would act if facts were put before him. It certainly appears, from the statements which he has made, that sufficient facts were not put before him to enable him to act. I could be quite wrong. I do not know exactly what went on but it appears to be the kind of example I have in mind, where an investigation just did not produce evidence and facts and so on.

There is no doubt that if you are going to have a situation where the commission will only be allowed to adjudicate, no matter how well selected the commission is, no matter how anxious they are to get to the root of the complaint and no matter how good they are in every way, if there is nothing before them there is nothing they can do. There is a very real possibility that they will be in a situation in which, quite simply, nothing will be put before them, in some cases possibly because there is very deliberate refusal to co-operate by members of the Garda. That might not happen very often but there would be many other cases where there would not be the kind of dedication to investigating and bringing the facts before the commission which there should be and which would leave the commission in a situation where they could not act.

I cannot stress too strongly how necessary I think it is that this complaints commission should have the full power to investigate and adjudicate. If they do not have both then in many cases they will be powerless and they will fail to do what this House and the other House feel very strongly should be done. For that very reason the whole balance of this Bill will be upset. It has been said again and again by those who accepted and supported this Bill with very grave reservations, that they did so only on the basis that there would be a genuine, powerful and effective complaints commission. If this complaints commission does not have the power of investigation it will not be effective, it will not fulfil its functions as envisaged by the two Houses of the Oireachtas and it will lead Members of both Houses and members of the public to feel that the Bill should not have been introduced because the protection provided by this commission will not be available to avoid the kind of complaints and the kind of injustice that might arise from the provisions of the Bill.

I would like to begin my contribution on this amendment to the Seanad amendment by saying that I very much welcome the fact that there was an amendment from the Seanad alive at the time when the recent events gave credence to a number of the concerns that had been expressed both in the other House and at considerable length in this House about aspects of the Criminal Justice Bill. Many of us spoke at considerable length about our concerns and our worries, particularly in relation to extending the powers of the Garda and authorising them, under section 4 of the Bill, to detain people for periods. We expressed those concerns in precisely the kind of terms which then became a grim and shocking reality when the events, particularly following the death of a baby in Kerry, became known through the media and people were shocked by what they perceived to be the pressures put on people within the garda station. We are not in a position in this House to comment in an informed way on those incidents because we still do not have the result of any inquiry on which to base a judgment. I assume that it was principally for that reason that on the Order of Business today a proposal was made that this House delay consideration of the amendment and of the commitment in that amendment not to bring in the provisions of the Criminal Justice Bill relating to detention and other provisions until there is an appropriate complaints machinery.

If I felt it was possible for this House to delay the matter and still have a real opportunity to debate it then I think there would be considerable merit in the proposal, but as I explained at the time I think the House would effectively have deprived itself of this debate and of the opportunity which it affords us to seek further clarification and to urge on the Minister the strength of our concern to ensure that at this very late stage in the administration of justice in Ireland we do get the balance right. It is a balance between the role and indeed the requirement that the Garda Síochána are a respected and important part of the machinery of justice. It is also extremely important that we face up to the bad incidents there have been and the underlying disquiet that flows from those incidents. The disquiet is all the greater because there has not been a sense of fairness, a sense of proper and independent investigation, and there has not been the kind of fair procedures which our Constitution provides are a right of the citizens of this country. It is a very good thing and it was a good day's work in this House that we did, when this Bill came before us, secure two amendments, in effect, but in particular this amendment which was then debated in the other House and in itself amended.

I would like to go back briefly to the history of how the amendment arose in this House, because it still seems that the values which are being argued for have to be argued chip by chip. It is like pulling hen's teeth. It is difficult to get the full acknowledgment of what are, in fact, fundamental values if we are going to have the system of administration of justice and if we are going to have a sense of what we mean and what we must mean by justice in the most important area of our law, the law that affects the individual and affects the freedom of the individual, one of the most fundamental rights of the individual.

I would like to refer to the debate which took place in the Seanad when the amendment was being proposed. The first debate on an amendment was on Committee Stage in the Seanad on 25 September, just over two months ago, and there was an amendment, which was the first one considered, in the names of Senator Michael Higgins and myself which provided, in effect, that the relevant sections would not be brought into operation "until a complaints procedure involving an assessment by an independent person or tribunal has been established and until the regulations referred to in section 7 of this Act are in force." In moving that amendment I pointed out that the wording had been taken very closely from the Explanatory Memorandum that had been published at the time of the Bill and then, added to that, had been the safeguard of referring to the regulations which would be laid in draft under section 7 and requiring that these too would have to be passed and in operation before the sections would come into effect.

Senator Ryan, who had a similar amendment down, supported this amendment, as did other Members of the House. The Minister's initial reaction was a very qualified one. It was effectively that he did not see the necessity to write a provision of this kind into the legislation. There was further discussion, and then at column 510 of the Official Report, Volume 105, No. 6, I pressed the Minister on the matter, and I would like to refer to the extracts because I think they are relevant to our discussion today. I said:

I feel it necessary to come back on this amendment and, indeed to press the Minister further in regard to it. It is quite clear from the contributions on both sides of the House, from the two parties that form the Government and also from the Fianna Fáil benches and from the Independents, that there is a shared view that it would add to the safeguards in the Bill to have the particular protections referred to in these amendments incorporated in the text of the Bill.

I then went on to say that I wanted a clearer assurance from the Minister that he would be prepared to seriously consider bringing in a Government amendment at the Report Stage and that it was the intention of the movers of that amendment to re-table the amendment and to await seeing whether a Government amendment would be forthcoming. In a response to that the Minister said at column 511:

I should like to say that the Garda when consulted said they have no reluctance in accepting a complaints procedure. As a matter of fact they have stated it on several occasions. The particular formulation of the complaints procedure that has been discussed with them in various consultations that have taken place has been accepted in principle. I hope that the consultations will be finalised very shortly. I expect to have a draft Bill in the next couple of weeks and that the consultations with the Garda will be finalised. I do not see any great problem there. I hope they will be able to accept in principle and in detail also the draft regulations which are being drawn up. We have not discussed that with them in any detail yet. I do not foresee any problems there either.

Then he points out that he is glad there are no aspersions being case on the bona fides of the gardaí and that he would genuinely look, and indeed he did subsequently bring in an amendment at Report Stage.

We then had at Report Stage in this House the two variations, the two different amendments. We had re-tabled the amendment in the names of Senator Michael Higgins and myself which again referred to the independent person or tribunal, and the Government amendment at that time significantly did not have that added to it. It was the amendment which went to the Dail and it provided as follows:

An order shall not be made under subsection (1) in respect of any of the following sections namely, sections 4 to 6, 8 to 10, 15, 16, 18 and 19 until provisions relating to the investigation and adjudication of complaints by the public against members of the Garda Síochána not above the rank of chief superintendent have been enacted by the Oireachtas and have come into operation and until regulations under section 7 have been made.

That was a significant difference between the amendment which had received widespread support in this House and which formed the basis of the Minister undertaking to look further at the matter, and yet the Government amendment, which was accepted by this House and the other amendment was withdrawn, did not refer to any role of an independent or a non-Garda body however composed.

The amendment which the Minister then made in the other House to that amendment is a step further — we are making progress — because it does import for the first time into the wording of the amendment a role for a non-Garda source. In other words, although the word "independent" is not used it is necessarily imported into the amendment because, as it stands at the moment, it provides that the relevant sections will not come in until provisions relating to the investigation and adjudication of complaints from the public against members of the Garda Síochána not above the rank of chief superintendent and the adjudication by a body other than the Garda Síochána of such complaints have been enacted by the Oireachtas and have come into operation and until regulations under section 7 have been made.

At this stage it is important for us to examine very closely the wording and to tease out the meaning of the words and phrases used in this amendment to the amendment. I regret that the Standing Orders of this House only allow us to have one bite at the cherry because it necessarily compels those of us who are anxious to have as much clarification as possible to speak at some length and then to invite the Minister and to hope that he will in replying give a very full reply to the issues raised.

This wording refers to the investigation of complaints in the first component of it and then refers to the adjudication by a body other than the Garda Síochána of such complaints. This gave rise in the other House, and I am sure it will also be pursued in this House, to considerable questioning as to what the distinction, if any, is being drawn between investigation and adjudication with regard to what the approach of establishing a complaints machinery might be. In the course of the debate in the other House on this the Minister provided some clarification but he also added to my confusion. I would like him to come back on this in his reply. In the debate in the other House on 7 November, Vol. 353, No. 7, at column 1346 he responded to questions from Deputy Barnes, among others, about what he meant by adjudication and he said:

Adjudication involves specifying the particular breach or breaches of discipline alleged, having a hearing of the evidence and of witnesses, making a decision on whether a breach has occurred and, if so, what disciplinary sanctions should be applied. I will be bringing before the House a Bill which will set up an independent body to investigate complaints.

I do not know whether that was meant to be "adjudicate" complaints or was it "investigate" complaints?

(Limerick East): Both.

That is part of the clarification we are seeking. The Minister in that quotation continues:

For example, if there was a seven-man board, would the House insist that all the members should be non-gardaí or would they accept that it might be appropriate to have one representative of the commissioner on that board? It is obviously an issue which concerns the House. I see the board as having a full-time staff which would be headed by a chief executive officer. It does not matter what he is called but he will be answerable to the board and be responsible for the day-to-day running of procedures. Investigations should be carried out by Garda officers in the normal course of events.

There seems to be some conflict there and I would welcome it if the Minister could resolve it. Is the investigation going to be by the independent body to investigate complaints or is the investigation going to be carried out by the Garda officers in the normal course of their duties and in a separate way the adjudication to be by the body which will be separate but may have gardaí represented on it? The Minister continues:

Investigations should be carried out by Garda officers in the normal course of events but under the supervision of the board and the board would have the power to prescribe general principles to be observed in the appointment of investigating officers. The board should also be able to give an investigating officer such directions as appear necessary in relation to any individual investigation.

The questions that I would like to have clarified further, arising out of that passage and the general discussion on this issue in the other House, is whether the Minister accepts the necessity for public confidence in the independence — in the sense of a separateness in their accountability at least — of those who would carry out an investigation into a serious complaint and that it would not be a matter of some members of the Garda investigating other members of the Garda in a way which the public now perceive as not giving rise to a satisfactory standard of objective fairness. I am not suggesting for a moment, and I do not want the Minister to feel that he must defend the reputation of the Garda, that gardaí are incapable of investigating other gardaí or incapable of being impartial in that investigation.

We are talking now in a very important political sense. We are talking about public perception. We are talking about the reputation of our system of administration of justice and we are talking about probably one of the most important attributes of a democracy. It would be one of the most serious ways in which our democracy could be undermined if there were to be a serious loss of confidence in the Garda Síochána. We know of another jurisdiction near to us, on the northern side of the Border, where that is a very serious consideration for that part of the country, where a very substantial proportion of the population lack all confidence in the impartiality and fairness of the police force which they have there. If that were to happen here it would be a tragedy which would be very hard to quantify.

In the particular circumstances, because of the degree of public disquiet which has been expressed through the elected representatives in the other House and in this House, we must be extremely concerned to ensure that the complaints machinery which evolves has in the investigatory stage a component of separateness which will reassure the public that there is a sufficient impartiality and a difference in the accountability by those who are investigating to ensure that what they do and the nature of the investigation will be accepted and the result of that investigation will lead to the acceptance that it satisfies these standards.

I now come to another issue which was raised and that is the position in relation to minor complaints. I would assume that when the Bill to establish this complaints machinery is before us there will be a simpler system for investigating more minor complaints. If every complaint had to go through a more elaborate form of investigation and inquiry, this for one thing which would slow down the whole procedure and indeed would itself I believe be a problem. Again, the Minister referred to this in some detail in the other House. It would be helpful to have further clarification from him. He emphasised that minor complaints would be dealt with in this way if there was the consent of the complainant. That is a very important thing. If the complainant does not regard the matter as a minor one but regards the matter as a very fundamental and important one then there must be a procedure for taking that into account.

I now turn to another issue which has arisen. Deputy Mervyn Taylor pointed out in the other House that there would need to be some form of appeal in the complaints machinery. I understood the Minister in the other House to have agreed that this would be necessary. Again, perhaps in his reply he would give the House some indication of how that would work because once again the introduction of an appeal from the investigation and the adjudication by whatever complaints body is established would help to restore — because it needs to be restored — full public confidence in the administration of justice and in particular in this area of complaints against gardaí.

Then there is the point which Senator Eoin Ryan also referred to, the exclusion of certain higher offices in the Garda from the scope of the complaints machinery. This is a matter which the Minister dealt with in the other House at column 1350 of the same report. He said:

We are talking about a commissioner, a couple of deputy commissioners and six or seven assistant commissioners. The difficulty is that there will be some Garda involvement in the adjudication process because the Commissioner is the chief disciplinary officer. He is unlikely to be there himself and the people he will appropriately nominate will be from that half dozen. I do not see, if you have an involvement like that, how that particular body would be appropriate to investigate that senior rank.

There is no question of exempting people of any rank from being at the receiving end of the complaint. I suggest to the House that it is a matter for the Government to investigate complaints against very senior officers in the Garda and that there will be opportunities to debate that when the Bill is before the House.

There are a couple of problems about that. It may well be, and clearly is the situation, that the Commissioner at the moment is the chief disciplinary officer of the gardaí, but what is envisaged, as I understand it, in the next Bill, the sister Bill of the Criminal Justice Bill, is that the whole system of discipline within the force will come under a different regime — though not entirely. There will still be presumably a disciplinary code and disciplinary measures, but in so far as we are concerned with complaints by the public these will now be subject to a different type of scrutiny and a different type of examination, investigation and adjudication. It does not seem to be satisfactory to exclude certain categories from that. I do not see any cogent reason for doing so. In fact it places the officers in question in a somewhat difficult position because in saying that it is for the Government of the day to investigate, we would be saying that if a particular incident arose, somebody would be requested to resign perhaps with their full pension rights, perhaps even with the golden handshake, rather than have an examination of the accountability of that person for their actions and an investigation of the complaint. Because there was no machinery which included that rank of officer within the Garda Síochána the public would feel that there would be an attempt to defuse the possible embarrassment to all concerned — which is a phrase we often hear — and that the person would be encouraged to retire. That is something which would not promote the confidence and the impartiality and the openness of the system which are the kind of values it must have. I would like the Minister to provide any other reasons he may have or to develop the reasons I have referred to in the passage that I quoted for excluding the senior officers of the Garda Síochána from the possibility of being accountable through complaints machinery. It would be desirable that all ranks would be included in an even-handed way. After all, we are a democracy and we should be democratic in that too, if that is possible.

I will come to my final comment on the amendment to the amendment. As I have already said, it is fortunate that there was a Seanad amendment on which to develop and give expression to the concern and apprehension felt by elected representatives in the other House and this House. There are very worrying aspects about some other recent incidents, a number of incidents which have not been the subject of any independent inquiry. These have been listed and referred to in recent media reports. I do not need to remind the Minister of the kind of cases that come to mind in this category including, obviously, the two most recent incidents in Kerry and in Cavan. There is public disquiet about these. It is not sufficient simply to try now to have a clean slate for the future and to try now to say we want to establish and to maintain and reinforce a complaints machinery which strikes the right balance and which will restore confidence in the Garda.

We must also be prepared to face up to the disquieting evidence which there is — much of it circumstantial but it is there — that incidents have taken place which have not been the subject of proper investigation, that people who have been detained in Garda stations have made statements in circumstances which cannot be stood over and that there has been no proper investigation. I would ask the Minister whether it is his intention to re-examine, or to have properly examined for the first time, a number of the past cases, not very far in the past. There were cases in recent years where there was not any independent complaints machinery and therefore that machinery could not be resorted to by those affected but where there was a sufficient degree of concern and disquiet and where there was a belief firmly held by responsible people that some of those involved in incidents which fell below a standard which would be regarded as satisfactory still hold, in some cases, quite senior office in the Garda Síochána and have never been made accountable for their actions.

This is one of the factors which do not promote confidence in or respect for or a sense of loyalty to the Garda Síochána. I would hope that when the Minister comes before this House with a Bill setting up the framework of the complaints machinery he will also have been able to take steps to set in motion an investigation of the kind I have outlined. The kind of investigation, in fact, could be a report to him by somebody whose independence is accepted and who would have and be able to have access both to sources within the Garda Síochána and to those who were immediately involved in various incidents. If the Minister were to seek a report of that kind and to take the steps — we are often very slow to lift up the stone and look at what is underneath — and face up to these very tough areas where just because a year, 18 months or two years have passed we feel that that is something in the past and we do not have to look into it.

It is exactly the lack of willingness to face up to these problems which has resulted in the kind of malaise about the credibility of the Garda as a body to investigate itself which in part gave rise to the criticisms of increasing the powers of the Garda. All this is part of the same kind of problem. It cannot be fully dealt with by having a clean slate and a better system for the future. We must also be prepared to look at some of the bad situations including current situations, look at them fully and do it all the more publicly because of the extent of the disquiet. In other words, the Minister is on record as having said at the time of the media coverage of the Kerry babies case that he would be prepared to institute a judicial inquiry if he felt that that was necessary.

I appreciate that the Minister is not in control of how quickly a preliminary inquiry can be held, but he must also be aware that there is considerable concern about the passage of time and about the absence of any decisive course of that kind. I would urge on him the importance of taking a step which ensures that there will be either a fullscale judicial inquiry, a sufficiently independent and public inquiry, of what transpired in Kerry so that we can understand better how such a thing could have happened and that we can ensure that circumstances like that do not arise in the future and do not have to be the subject of whatever better complaints machinery may come before us in the proposed legislation.

One does have to be quite careful, but, if I can draw an analogy at the beginning with something that we are going to discuss later on today, and that is the Ombudsman, if we were to pass legislation, or had passed legislation setting up the office of the Ombudsman to investigate not merely the serious questions that this complaints tribunal will be investigating, and if we were to say that the Ombudsman could make inquiries in a general way, but the detailed investigation would be carried out by officers of whichever Government Department the Ombudsman was querying, would it be acceptable? In other words if we did not give the Ombudsman the staff and the resources and the power to carry out investigations himself, independent of the agency or the staff of the agency he was investigating, we would have probably dismissed the whole idea of the Ombudsman as nothing more than a palliative to public concern which really would not deal with the issue.

We would not be happy that delays in the Department of Social Welfare would be investigated by officers of the Department of Social Welfare. It is not that we would say that they were all dishonourable or unjust or corrupt or anything like that; we would just recognise quite clearly how ludicrous it would be that allegations or complaints about a group or a body or a Government agency would in whole or in part be investigated by officers of that body, and therefore we gave the Ombudsman his own staff and his own resources to carry out his own independent investigation.

It appears therefore that when it comes to the Garda, where both the interests of the community and of the Garda and of the individual making the complaint are probably in many cases of a much more serious and much more fundamental nature, that we find it necessary to demur from a such a degree of independence in the investigative role. Issues are raised about the quality of the Garda and about the need to be careful about what you may say about the Garda and about the need to preserve public support for the Garda. On the other hand there is no point in living in cloud-cuckooland, somewhat like the majority of the people north of the Border, talking about the need to preserve public acceptability for a force, if at the same time outside of the confines of Leinster House public acceptability and the credibility of the force is in a rapid and apparently inexorable decline. For us to say something to the contrary will not make that decline any less likely and will not in any way slow down that decline.

It is extraordinary the number of people, some of them Members of the Oireachtas and many of them constituents of mine, relatively educated people who I would have thought had a reasonably balanced view of the world, who have warned me to be very careful of what I say about the Garda because they believe that if I am critical of the Garda the Garda will "get me". I do not believe it is true. I have said on many occasions that I do not believe it is true, but there is a widely held public perception that if you criticise the Garda you are putting yourself at risk. A number of people have said to me that Members of this House who often at great cost and pressure on themselves have criticised the Criminal Justice Bill must have a grudge against the Garda. That is the other side of the argument. But the issue nevertheless is that there is a widespread public feeling that if you are critical of the Garda, if you suggest that in some areas it is not appropriate for them to carry out certain functions, they will find ways of getting back at you. That is the most fundamental, threatening conception of the role and operation of the Garda that could be put out. It is a perception that is held by members of the Oireachtas as well as by the public. I know it is a perception that inhibited some Members of the Oireachtas from what they would say or would not say on the Criminal Justice Bill.

It needs to be said at this stage that there is a question mark over the capabilities of the Garda in certain areas. There is a question mark over the ability as things stand to conduct an adequate investigation into circumstances and questions that have arisen. The case of Amanda McShane is a case in point, in which a concocted statement was discovered by her solicitor before she had said a word and the case was dropped and no prosecution resulted and no disciplinary action resulted. I know that when issues are raised in this House the Minister is not prepared to comment on individual cases. It appears to me that it is only when the media raise individual cases the Minister gets really concerned, but when Members of this House endeavour to raise individual cases a different level of procedure arises. That is not to take anything from the Minister.

I got mildly reprimanded in a newspaper for apparently saying on the one hand that I disliked the Criminal Justice Bill and on the other hand that I admired the Minister's performance. It is one of the regrettable facts of the Criminal Justice Bill that it has been handled by a particularly capable Minister. We might have been a lot more successful in opposing it if we did not have such a capable Minister defending it. That is one of the regrettable facts of life that we have to cope with. That does not get away from the fact that at the centre of this small final element of the Criminal Justice Bill rests the core of the profound unease that many of us feel about the Bill, and it crystallises in this question of who investigates complaints that are made against the Garda. There are a number of issues and, apart from the ones about public perception and the ones about whether a question mark legitimately hangs over whether all the gardaí can actually be entirely trusted to carry out an investigation in the way we would like, there is the question of the complainant, the person who makes the complaint against the Garda.

Is it not a bit much to suggest that somebody who rightly or wrongly believes he or she has been very badly treated by the Garda and is understandably therefore extremely unhappy in the presence of the Garda and is understandably extremely nervous about Garda, will now be told, "In order to have your claim processed you must be questioned by the Garda"? It seems to be pushing the thing a long way to say that somebody who is frightened — and we have seen recent incidents of the claims that people have been extremely frightened — should now be asked, in order to satisfy some need that is not apparent to me, some need, apparently, in the Garda force or in the legal process, in order to have their claim processed, to go through again that which was initially the source of their complaint, an interrogation by the Garda Síochána.

It is very difficult to believe that we are going to have any substantial volume of complaints adequately presented and processed if the person who presents the claim knows that one of the consequences of making the claim is further questioning by the Garda. To suggest that distinctions can be made between certain officers and other officers in the eyes of frightened people is to betray a certain unreality in one's understanding of human nature.

All that is separate from the other issues that have been mentioned here. It is not fair any longer to say that the public have an unqualified high opinion of the Garda. They do not. There is widespread and considerable public concern about the capability of the Garda to carry out investigations. There is widespread public concern that in the case of what happened in Shercock the bringing of charges to court took an extraordinarily long period of time by comparison with many other cases.

I see the Minister is contradicting me: if the evidence is there that it was not extraordinarily long, I stand to be corrected. He has the necessary resources. We will wait and see. A large number of people in society would share the perception that I have about it. At the core of this is whether or not, on a Bill which the Minister and everyone accepts has given rise to a most intensive public debate, what the Minister identifies at the beginning as being a very necessary part of the satisfying of public concern should now be devalued by virtue of an insistence that the investigation must and will be carried out by the same force against which the complaints are being made.

In the area of the operations of the Ombudsman we would never have suggested a procedure like that, and it is recognised that for the Ombudsman to function properly he has to have his own staff to carry out the investigation. Equally, any tribunal of complaint must either have its own staff or a separate agency must be set up to deal with such complaints. Otherwise both the credibility of the adjudication, the credibility of the process and also the welfare and the fears of complainants will be severely jeopardised. I do not believe people will be prepared to subject themselves to another Garda investigation.

I once had to go into a Garda station to make a complaint about misbehaviour by a member of the Garda and I was in a fairly strong position. I was not a Member of the Oireachtas at the time and I was not making a complaint on my own behalf, and the palpable atmosphere of hostility that descended upon the Garda station among the 20 or so gardaí who were present once I said out loud and in public that I was there to make a complaint because somebody I knew and trusted had alleged to me that he had been assaulted by a member of the Garda, was positively intimidating. To suggest that people with less armoury to defend themselves and less knowledge of how to protect themselves would be prepared to go through a process where the first immediate consequence would be investigation by the Garda seems to be stretching credibility and stretching the conception of how people see their role in society beyond any reasonable degree. It seems the problem is that there is a very vigorous resistance in the Garda to an independent investigation of complaints against them and it is therefore necessary to preclude that possibility in whatever discussions the Minister will be having with them. That is giving the Garda a veto on the format and the nature of the investigations that will be carried out against them. That is entirely unsatisfactory. The investigation that was carried out into the complaints made by Nicky Kelly demonstrated how inadequately the Garda investigate complaints against themselves.

Deputy Gregory in the Dáil detailed the experience of an individual who had the misfortune to make a complaint against the Garda and weeks later was suddenly charged with assaulting and various other offences against the Garda on the night in which he alleged he was assaulted, and eventually had to go to court. The case was dismissed and eventually he got damages against the Garda for the complaints he made, but in between he had charges brought against him by the Garda. If that is the climate in which complaints against the Garda are to be investigated then no amount of independence in the final tribunal will convince anybody that complaints are really being dealt with in an objective way which is protecting the Garda and the complainant.

On the question of investigation of the senior members of the Garda, the rank of Commissioner and Assistant Commissioners, the Minister rightly said that the Government handle the investigations. If the Government promise to have a judicial inquiry into political interference in the Garda had been kept, it would be much easier to believe that Governments were both willing and able to investigate complaints against senior members of the Garda. The extraordinary determination not to proceed with the promise of a judicial inquiry into political interference in the Garda will not satisfy me that there will ever be the political will to deal with complaints in a way which will satisfy public opinion.

Senator Robinson said that getting people to retire early and giving them generous golden handshakes in the process is not the way to satisfy public opinion that everybody is equal in the eyes of Government and in the eyes of the law — I suppose it would be naive to suspect that everybody was equal in the eyes of Government whatever about in the eyes of the law. It would be much easier to believe that there was a possibility of investigation at that level if the judicial inquiry promised had been set up. The alienation problem should be raised again in this House. Whatever the situation in Northern Ireland is — some people will have to have "alienation" branded on their nose before they will recognise it — we are developing a similar problem down here. I do not think that all the complaints procedures in the world would prevent that, but I believe that a degree of independence involved in the investigation of complaints against the Garda would be a critical factor in alleviating the suspicions, criticisms and hostilities that are the basis of alienation. It is regrettable that for reasons not explained by the Minister in this House the commitment to independent investigation is not to be incorporated in this most regrettable legislation.

When this Bill came to us from the Dáil, section 1 provided that the Bill would commence on such date as the Minister would by order determine. During the course of the debate in this House on Second Stage and on Committee Stage Members expressed concern about various aspects of this Bill, particularly the controversial sections which are referred to specifically in the amendment before us. The Minister gave certain undertakings that these sections would not be brought into effect until the regulations under section 7 had been specified and ordered and until a Garda complaints procedure had been established by statute. On Report Stage in this House the Minister went further by introducing an amendment in his own name similar to an amendment introduced by other Members of this House, putting that commitment into statutory form.

When the Bill went back to the Dáil concern was expressed there that the complaints procedure would not be independent. Concern was expressed that the amendment introduced in this House would not necessarily allow the ultimate emergence of a sufficiently independent complaints procedure. We now have before us in the document which has been circulated the original amendment introduced and passed by this House and the amendment which was introduced in the Dáil more recently by the Minister and the amendment before us today in the names of Senators Lanigan, B. Ryan and W. Ryan.

I find it difficult to see any great difference between the three amendments in so far as the element and aspect of the independence of the complaints procedure is concerned. Irrespective of the words used, all three amount to the fact that the tribunal when established will be independent. It is difficult for this House or for any Legislature to legislate and to tie the hands of the Legislature at a future date. We are attempting to tie the hands of the Legislature at a future date, and that is leaving aside the fact that there is a commitment and a stay on this legislation. If we accept any one of the amendments, there is a stay to ensure that the controversial provisions will not come into effect until the complaints procedure is established. It seems to me — I may be wrong in this and, if so, I would like the Minister to correct me — that irrespective of which of the amendments we accept we can still legislate, as the Joint Houses of the Oireachtas in their wisdom at a future date will so decide, for the complaints procedure. Members of this House and of the other House have been very vocal in saying that circumstances have been changing rapidly and that events have been coming to light which are giving rise to increasing public concern. If one refers to these events and in particular to the Matthews case, one finds it inconceivable that they can be used as an argument in relation to the Garda complaints procedure and to the inadequacy of existing procedures. I can certainly see how the argument of the Shercock case can be used as a reason for the Minister very rapidly introducing regulations under section 7 of the Bill. I should like to see speedy movement on the introduction of regulations under that section and speedy movement on the introduction of a Bill dealing with the complaints procedure. But the Shercock case cannot be used as a reason for condemning the inadequacy of existing disciplinary procedures. The fact that the Shercock case ended up before the Central Criminal Court was due to the efficiency of existing disciplinary procedures.

While I am speaking about existing disciplinary procedures I would say of them, and I am referring in particular to the Garda Síochána Disciplinary Regulations 1977, having defended a considerable number of gardaí under these regulations both in relation to complaints instigated within the force and complaints instigated by the public, that they are mechanically unsatisfactory. They are regulations which in their operation are cumbersome and unsatisfactory in every way. The fact that so many people have to make decisions at various levels before an investigation is undertaken, in the absence of information as to how it is to be undertaken, sworn or otherwise, and in the circumstances in which the actual investigative process is really only a process by which a report is prepared and a decision arrived at with the Commissioner being responsible ultimately for adjudicating on the decision, is unsatisfactory.

The existing procedure would appear to be inadequate when something such as what has been referred to as the Kerry babies case remains unconcluded business in the eyes of the public. I would see that as one reason for saying that the existing disciplinary procedure is unsatisfactory. I am concerned about certain aspects of the kind of complaints procedure we will have. It is to be independent, whatever amendment one accepts, one can accept that but by "independent", I presume is meant independent of the Garda Síochána. I should like to know how the tribunal which the Minister has in mind will be composed. I share the concern expressed by some Members as to the investigative role and the role of adjudication. Will the tribunal operate, for instance, as the Criminal Injuries Compensation Tribunal operate, whereby individual members of the tribunal service complete files and adjudicate on them or will they have the power, as that tribunal have in certain circumstances, to direct further investigations and searches? Will they have power to investigate and to cause matters to be investigated in depth to the satisfaction of that tribunal? Would the Minister indicate, if it is possible to do so at this stage, how the tribunal are to operate?

Senator Robinson raised a valid point when she referred to minor complaints. How embracing will the tribunal be? Will anybody be able to make any kind of complaint and expect that it will be investigated? Are members of the Garda to be subject to any frivolous or minor complaint from a member of the public? We can speak about the rights of members of the public to be assured that the powers the Criminal Justice Bill confers on the Garda will not be abused in any way, to be assured that the other powers, both statutory and common law powers, that the Garda possess, will not be abused but the Garda must be assured also that they are not to be subject to the rigours of a complaints tribunal on the basis of frivolous complaints. This is the kind of matter the Minister for the Environment addressed himself to when re-establishing An Bord Pleanála. The Garda should be protected in so far as frivolous complaints against them are concerned.

On the question of minor complaints, will the power of a superior member of the Garda be removed? Under article 7 of the existing Garda Síochána Disciplinary Regulations, any member whose duty includes the discipline of other members can deal with that member informally. If there is a complaint to a Garda sergeant that a garda in his station is not acting as he should act and if the Garda sergeant is so satisfied, he can caution or deal with the member informally. Would the establishment of a complaints commission along the lines suggested remove that power from an individual sergeant or from any garda in a supervisory position?

The question of a cut-off point at chief superintendent level is something I agree with. There is an essential difference between the ranks above chief superintendent and the ranks from chief superintendent down. The ranks below that of chief superintendent are essentially those who are in contact with the public. They are the ranks who are mobilised throughout the country with powers and functions which bring them into contact with the public. It is proper that they be subject to the complaints procedure. Members of the Garda at Commissioner, Deputy Commissioner and Assistant Commissioner ranks are in a different role. Successive Governments have shown their ability in dealing with Commissioners and Assistant Commissioners as the need arose.

On at least two previous occasions I said I had no difficulty in agreeing in principle with the Bill. That still is the case. However, I am quite concerned about its effective implementation in due course. It is vital that adequate preparation be made for its implementation. Otherwise if it is not so implemented, the Bill will not be worth the paper it is written on.

Confidence in the Garda force is of the first importance. It follows logically that confidence in the complaints procedure and in the regulations are also particularly important. However, the effective implementation of the Bill will cost a lot of money. The Minister when replying might indicate what attention has been devoted to the cost involved and also what sort of progress has been made in providing the funds to effectively implement the Bill in due course.

At the end of the day Garda sergeants will have the responsibility for the implementation of the Bill. Therefore extra Garda sergeants will have to be appointed, and that will cost money. In addition extra clerical staff will have to be appointed. That, too, will cost money. If the Bill is to be properly implemented there will have to be appropriate accommodation. It goes without saying that many Garda stations do not have proper interview rooms or proper cell accommodation.

Another aspect I am concerned about is Garda training for the implementation of the complaints procedure and the regulations in particular. Additional funds will have to be devoted for in-service training of members in the operation of these new procedures. If detainees are to have the opportunity to phone their solicitors — if they are fortunate enough to know solicitors — extra telephones will be required to ensure that contact is made between detainees and solicitors.

Finally I wish to refer to the point raised by Senator Eoin Ryan and other speakers in relation to the exclusion of the top ten officers or so in the Garda from the scope of the complaints procedure. I remain to be convinced that the Minister's reasoning in the Dáil is adequate. A balance has to be struck between the reason he has put forward and the almost unnecessary invitation to the public and to other members of the Garda to be suspicious about these exclusions. If there are no substantial grounds, and I suggest that such substantial grounds do not at this point exist, for the exclusion of these top Garda officers, then I ask the question, why not include them?

My primary point, however, is about planning for the effective implementation of the Bill. Now is the time to provide the resources to arrange for training, for extra personnel for the facilities that will be essential for effectively implementing the Bill.

In your wisdom you decided that it would not be appropriate to discuss the Clover Meats issue today. If you had decided to discuss it this kind of discussion would be about as relevant as if we decided to use that time to discuss the petty cash book of Clover Meats rather than the issue itself, because what we are talking about is the petty cash of this legislation and not the actual heart of it. Senator Durcan is right: it is irrelevant which of these three sections are put into the Bill because they all mean the same thing anyway.

Therefore, we are spending our time talking about matters that are largely irrelevant. We have three possibilities before us today. We have the original amendment in the Seanad which the Minister conceded on, and that was a very valuable concession, but what has gone on since then is only party political jockeying for position. Fianna Fáil, having abdicated their responsibilities with regard to this Bill time and time again, have been reduced to playing with words to try to give the impression that they in fact opposed in some meaningful way the Criminal Justice Bill. They have abdicated their responsibility as the Opposition in this House and as the Opposition in the other House. They confined themselves to putting down meaningless amendments to other meaningless amendments which the Minister has put down to a substantial amendment. That is the reality. We have the grotesque situation where the other House is delayed by a complete week because of the necessity to improve the self importance of certain spokesmen for the Opposition in that House.

The three possibilities before us have a central core with which I agree. Amendment No. 1 as made by the Seanad expresses the view that was the majority view in the House. However, the additional amendments make very little change on that concession by the Minister. It was appropriate that we would consider a much wider aspect of the Criminal Justice Bill when the matter was being considered by the House. It does not appear to have caused the Chair any difficulty whatsoever that people referred, for example, to what has become known as the Shercock case. My colleague, Senator Brendan Ryan, with whom I very seldom agree, made a statement to which the Minister, by the shaking of his head demurred, that was, that there had been an unreasonable delay in processing that case. That is true. There was not an unreasonable delay in so far as bringing people to trial, once charged, was concerned. More than 13 months passed before anyone was charged with anything in connection with that incident even though each of the people involved knew who was involved and it was a simple matter to get statements from them. Thirteen months elapsed before statements were got from the people by the chief superintendent who investigated the case ultimately. The incident happened in April 1982 and these statements were not got until May 1983. There was an unreasonable delay. The reason for that delay is the way in which complaints against the Garda are dealt with. There is no necessity for anybody to tell lies. The matter is simply delayed until it becomes irrelevant. That is not only my view. A person who has held a very high post in Government has told me it is his view that the method of overcoming complaints against the Garda is to delay the investigation until the matter becomes irrelevant.

That happened in the case of Shercock. It also happened that the necessity of having an independent investigative process was shown in that case because somewhere at some time a decision was taken, on the basis of information supplied to the Director of Public Prosecutions, to separate the potential defendants in that case and to try them separately. That was the decision which brought about a successive series of acquittals. Shercock is relevant to why we need an independent investigative procedure and independent adjudication, because it shows how it is possible to play ducks and drakes with the system, how it is possible to divide and conquer.

I mentioned briefly earlier another case that is relevant in that regard — the Kerry babies case. It baffles me why this case has not been explained to the public after this long period of time. It should not baffle us, because it is again the use of the tactic of delay, and delay will overcome the necessity for the completion of investigations and will overcome conclusions for investigations unless the investigative process is not carried out by the Garda and not adjudicated by them. The Minister is aware of the Bunratty case. There are other cases which are important. The Bunratty case, in so far as part of it is concerned——

Limerick East): That case is sub judice.

I am not referring to any portion of a case which issub judice. The charge against the individual is sub judice. I do not have to say anything else. The Minister knows all about the Bunratty case.

There is very little difference between the proposals which are here today before us. What difference does it make which one of these three options is accepted by the House? It makes very little difference to what was discussed. I was interested in what Senator Robinson said. It was extremely competent advocacy but it added nothing to our store of knowledge, no more than I am adding to your store of knowledge now. Presumably Senator Robinson is going to come in and vote for what Senator Dooge has proposed. It appears to me that there has developed a disease in this House today which I can only describe as sticky backsides — people unwilling to stand, glued to their seats by some unseen force. I hope those who suffer from sticky backsides will get the rewards they consider they deserve, whether those rewards be membership of the other House or a position of importance under the Constitution. They will have earned their reward. It is no wonder the Minister laughs. He knows what I am talking about.

One of the significant points made in the debate here today was made by Senator Eoin Ryan who referred to the necessity for an independent complaints commission. I have a slight difficulty in referring, in an amendment, to something called an independent complaints commission. I have a slight difficulty in referring, in an independent complaints commission, which is not, in itself, defined. That is one of the problems with the Fianna Fáil amendment. The use of the expression "independent complaints commission" begs the question of what is an independent complaints commission. I wonder whether an independent complaints commission in this Bill can be defined in the text of another Bill. I doubt it. To overcome the problem you would have to do something like this: when you bring in the Bill to deal with the complaints procedure you would have to say "for the purpose of section so-and-so of the Criminal Justice Bill, the independent complaints commission referred to therein is the commission established by section 54 of this Bill". I wonder if that is really sustainable. There might be a problem there. Fianna Fáil, in the manner in which they have dealt with this matter, have not come to terms with this problem, in either the Dáil or the Seanad. The use of an expression such as "an independent complaints commission" in itself creates problems. It creates problems of linking that to the ultimate legislation which is going to go through. There is some difficulty in that regard.

The idea behind what Fianna Fáil are saying is excellent. They are correct in saying that there should be an independent complaints commission, that it is important to have one. They are also correct in saying that it should not cease at the rank of chief superintendent. It is almost inconceivable that one could get a complaint in respect of a rank higher than that of chief superintendent. If the Garda themselves are going to carry out the investigation and the adjudication it is inconceivable that it could go higher than the chief superintendent. In the event of there being in practice an independent complaints commission I do not see any great problem regarding a complaint which might arise in respect of a Commissioner or somebody of a lower status being brought before that independent complaints commission. Fianna Fáil are right in a marginal sort of way. The complaints we hear against the members of the Garda — thankfully they are against a tiny minority of the Garda — do not relate very often to anybody above the rank of chief superintendent or even to the rank of chief superintendent.

That is an important point Fianna Fáil have brought out in their examination of this legislation, but all these matters can be dealt with in the next Bill. The important thing is the point of principle we are seeking. I congratulate Senator Robinson and Senator Michael D. Higgins and indeed Fianna Fáil in this House for bringing forward the original amendment at the Committee Stage which gave rise to the ministerial amendment in the Seanad. That was the important achievement in so far as it relates to this section. The other changes by the Minister and by Fianna Fáil are of little relevance.

I should like to express to the House my reason for voting the way I intend voting. It will be — if nothing else — consistent. I hope those of my colleagues who adopted the same attitude towards the Bill as myself will also consider my action to be consistent.

The Seanad should take this opportunity of sending the Bill back to the Dáil. The reason I want to play ping-pong with the Bill is that I do not like it and I do not want it to be enacted. The way we should play ping-pong with it is to vote against Senator Dooge's motion and vote also against the Fianna Fáil amendment. We must recognise that circumstances have changed. We must recognise that the reputation of the Garda Síochána — probably to an unjustified extent — has taken a severe hammering, not as a result of anything which took place in this House, but as a result of matters which have been taken place outside of it. They must realise that there has been a change of attitude in the country, that the Minister no longer commands the widespread support in respect of this legislation which he commanded at one time in the past. There has been a change in the people's attitude.

It is incumbent on the Members of this House to take that change of attitude into account. There have been strong indications that even a Minister as brilliant as this Minister cannot beat the Garda when it comes to the question of investigating complaints. They will beat him. I said it to him before and I will say it to him again, they will beat him. There is every indication that even with his determination he will not win, because they will delay and delay until such time as everybody concerned gives up in frustration. Everybody, from sitting on the fence, will develop sticky backsides, the same complaint which was so prevalent in the Seanad today.

For all these reasons it is important that the Seanad should send out a message to the Government and to the people that until such time as the various investigations which are now pending are complete, the additional powers contained in the Criminal Justice Bill will not be enacted. I am not talking about their being brought into operation. The only way I can play my part in that is by voting against both the motion and the amendment before us today, and I intend to do that.

I share Senator O'Leary's concern about the enacting of this Bill while we still have hanging over us the various queries which have arisen as a result of the recent cases which have been so noised abroad in the public press, in particular the Kerry babies case and the Shercock, Cavan, case. Senator Robinson said earlier in the debate that we are unable to comment in an informed way on the issues that arose out of these cases. It is precisely because we cannot comment on them in an informed way that myself, Senator Brendan Ryan and Senator O'Leary have been spurred on to make an effort on the Order of Business to prevent the Seanad from putting a final imprimatur on this Bill. What the Seanad does about it is significant. I realise the practical difficulties as outlined by Senator Robinson. I realise the Seanad cannot entirely stop the Bill. Nevertheless, it is significant that the Seanad, if possible, should not put a final imprimatur on it. However, we have now reached the point of debating these amendments. I welcome the principle of the amendments which originated in the Seanad and which the Minister accepted. There is no doubt about it but it improved the original Bill immensely. It was accepted that the various sections should not come into effect until the investigation and complaints procedure was set up.

I congratulate the people who brought in the amendments in the Seanad, Senator Robinson and Senator Michael Higgins, and the Fianna Fáil Party amendments to the same effect. I also congratulate the Minister on the fact that he accepted a change in the Bill, which was a major change, and that he was willing to take it back to the Dáil. We must accept that in so doing he showed that he had an open mind and was able to take on board the criticisms that were made in the Seanad debate on the Bill. Naturally it is a source of pleasure to me as a Senator that this major change in the Criminal Justice Bill should have arisen out of a debate that took place in this House.

I support, in principle, the Fianna Fáil amendment to the amendment which would bring in all ranks of the Garda Síochána and also an independent complaints commission. It is a fairer way of setting it up and of being more open and effective. I see the point that Senator O'Leary is making about the difficulty of drafting the Bill but, nevertheless, it is important enough a principle to say that we would prefer to have an independent complaints commission.

I join with other Senators in saying that it is not only a question of adjudication by an independent commission but also investigation by an independent body. I share the fear that to have any complaints investigated by members of the Garda Síochána themselves and merely the adjudication being done by the independent body would not be effective and above all would not be seen by the public to be effective. Anyone who has any experience of how trials work or how investigations in court work, will see that one of the most important elements in the adjudication that comes out at the end is not the arguments made but the evidence that is before the adjudicating body. If we have an adjudicating body whose investigations are carried out not by themselves and therefore who have not much control over the evidence brought before them, the kind of adjudication they can make is very limited. As in the case of the Ombudsman or indeed in a different way in the case of the Director of Consumer Affairs, they would need staff of their own in order to ensure independence in the investigation of any complaints. Internal investigations can give rise to enormous frustration, difficulty and delay both for members of the public and for others. Loss of confidence can result.

I recall attempting to represent a member of the public at an internal inquiry at a Garda station. I fought for several hours to have the right to appear at all. When I did appear, the matter was dealt with by the announcement that the papers summoning the defaulting garda to the inquiry were faulty and, therefore, the matter would have to be adjourned indefinitely until they were served again with papers. I have nothing to judge by to say whether that was an exceptional case or not. Once a member of the public and a member of a legal profession arrived it was aborted.

I have not much confidence in the idea of internal inquiries, however well meant they may be. Arising out of this, it is important that not only the adjudication but the investigation would need to be independent. This is very important in regard to the public perception of how this complaints commission should work or whatever complaints body is set up. The public will have no confidence in it unless it is seen to be independent through and through and not merely, as it were, independent icing on the cake which is the same cake that we have had before.

With regard to the matter of the senior ranks in the Garda Síochána this is not a point of enormous importance but it is relevant if justice is to be seen to be done even within the ranks of the Garda Síochána themselves. I know that if I was a sergeant or whatever I would feel somewhat aggrieved at the idea that any of my misdemeanours might be investigated by this complaints commission but those who were, as it were, the bosses were able to avoid this. I would not foresee this arising frequently. Perhaps it would not arise at all but from the point of view of natural justice all ranks should be included. I share the feeling of other Senators that hurrying along people's resignations and giving them golden handshakes as they go out of the door is not at all the same kind of dealing with the matter as would apply to lower ranks in the force. From the point of view of the morale of the gardaí and officers who are not of such a high rank, it would be fairer to include all within the procedure.

These are matters of detail, and, in principle, I am extremely pleased that this amendment came from the Seanad, that it went to the Dáil and has been in substance passed by the Dáil. It makes a considerable difference to the operation of the Criminal Justice Bill as a whole. I emphasise that in the present atmosphere of doubt and public dismay at what has been revealed so far, or what has been rumoured or alleged because we have no proof one way or the other, but while this is hanging about our ears we should not proceed to enact this Bill into law or to give our voice to the enactment of it into law.

I do not believe any useful purpose will be served or anything worthwhile achieved by further delaying the passage of this legislation. The debate has centred on doubts as to the effectiveness or otherwise of the independent complaints procedure which will operate and which the Minister has told us is his intention to bring in. No one can say with any measure of certainty how effective or otherwise any complaints procedure will be until it is in operation. It is only when it is being availed of that any shortcomings will emerge. The Minister has emphasised — despite that doubts have continued to be expressed — that the complaints procedure which he intends to bring into being will be independent, that its investigative powers will be independent of the Garda and its adjudication will be independent. Having heard that, I am satisfied that the complaints procedure that he envisages will be in line with the assurances he has given both in this House and in the other House.

There is one thing in connection with this matter, and I can assure you I am not extending the scope of the debate, that concerns me in relation to the discussion on this legislation. At times some of my colleagues had a tendency to move away from the point of ensuring that there was no imbalance at the end of the day. It is vital to ensure balance in this legislation just as it is necessary to have balance in the type of complaints procedure that will exist. Therefore, I would measure that by saying that an independent complaints procedure in establishing the full truth in relation to any complaint is all that is required.

If we go further than that and say it is necessary to overstretch ourselves we run the risk of going far beyond what is required and would bring about a situation where we would simply encourage witch hunt after witch hunt. We then acknowledge that we are undermining the effectiveness of the role of the police force. We are damaging the system and we are achieving nothing more than we can achieve with a system of complaints procedure, investigation and so on, that is adequate in establishing the truth of the complaints that are made.

I want to acknowledge that there is public disquiet. My knowledge of a case that has been mentioned here by previous speakers, the case of the Kerry babies, is nothing more than what I have heard or seen in the media or read in the papers. What disturbs me, is that the attempt at finding the truth or arriving at conclusions in the investigation of that case has been frustrated by lack of co-operation. That is the message that has come across and it is one that I deplore and totally reject. In so far as that attitude prevails public disquiet will grow. It is necessary that the Minister will, with all resolution, reassure the public again and again that attempts by any members of the force to frustrate an inquiry such as that in the case of the Kerry babies will be handled by him by the most effective means available to him.

I do not agree that anything unacceptable is widespread within the Garda. I believe that the vast majority of the members of that force are men and women of honour and distinction who have brought credit to the force. Having regard to the case in Kerry there is a belief within the force that there are those who should not be there, who are bringing discredit to it and who have to be dealt with and removed from it before it is damaged further.

I want to conclude by reiterating the two points I made. What we require is an adequate procedure and I believe that in the motion before us this evening that will come about. I would press upon the Minister the necessity of ensuring that events such as those in the case of the Kerry babies are now at an end and if there are people within the force who by their actions are damaging it they should be dealt with accordingly.

This amendment which protects the public is a very welcome addition to the Bill. Like Senator Howard, we could speak for ever about what might happen and what could happen under this investigation. We will not know until it is actually in force. If it appears that everything is a whitewash job then I presume the Minister can move in and do something about it. I accept that there are bad eggs in the Garda Síochána. Can politicians claim a complete clean sheet for themselves? Can the journalists who often decide what our viewpoint is on these things make this claim? Can anybody claim that there is no bad egg in his own profession or his own way of life?

While I would have no mercy on gardaí who overstep the limits and while I think the investigating committee should get every support to deal with them, we should not lose sight of the fact that the vast majority of the Garda are there to protect innocent people. Earlier today I was amazed to hear people with legal experience more or less deciding that the Criminal Justice Bill should be judged on the basis of two incidents that would appear at the moment to be going against the Garda. Take the case of the poor man of 79 who was beaten to death. Could you react in the opposite way and say that we have not half enough laws tough enough to deal with those people who harass older people? I am afraid that once more we are going to spend so long looking after the few bad eggs that are in the Garda Síochána that we will forget to protect the innocent people.

Limerick East): The core of the amendment, that which we have come to term the controversial sections of the Bill, cannot be brought into operation by order by me or any other Minister until the complaints procedure has been passed by both Houses of the Oireachtas and until regulations governing the control and treatment of people in custody have been approved by both Houses of the Oireachtas and subsequently made by me and put into operation. That is the situation which we are trying to achieve. That is the core of whichever kind of amendment we would like to get.

I gave a commitment that these sections would not be included. The Seanad asked me to write my verbal commitment into the Bill. I agreed to do that and I took it back to Dáil Éireann. The debate on the Seanad amendment in Dáil Éireann coincided with the two incidents which have been referred to here. An amendment which would have been accepted on the nod became an occasion for a long, searching debate on the nature of a complaints procedure. It was clear before the debate commenced that many Deputies on all sides of the House felt that while there was a commitment to independent investigation of complaints that the same commitment to an independent adjudication was not there. It was there and it was never my intention that it would be otherwise. So that it would be quite clear to Members of the Dáil I moved an amendment to the Seanad amendment. What has happened since in both the Dáil and in this House is that the nature of the complaints Bill have become the subject of the debate.

Proposals for the complaints Bill went to Government a long time ago and we have the final draft at this stage. There are about three or four outstanding matters to be dealt with by the Attorney General. I gave a clear indication in the Dáil of the nature of that complaints board as I am proposing it. It still has to go back to the Government for final ratification. Consequently, what is said in this House and what was said in the Dáil is relevant advice to me which I can present to the Government before they make a final decision on this matter.

It is an open secret now that I am thinking of a board which will be independent in the exercise of its functions, that would have, say, seven members. I pose the question: would it be acceptable to both Houses if the Commissioner had one nominee in those seven? Would both Houses require that it should have seven people who are not gardaí? I have also said that it would have to be headed by a chief executive officer who would have a full time staff.

On the question of investigation, the Garda Síochána conduct criminal investigations in this country. Under normal circumstances, the investigation would be carried out by the Garda Síochána but under the supervision of the board and the board will have the power to prescribe general principles to be observed in the appointment of investigating officers. It would be able to give the investigating officer such directions as appear necessary in relation to an individual investigation. Also, I am including in the Bill that it would be required that a preliminary report would be sent back from the Garda Síochána within 30 days. As regards what Senator O'Leary said in relation to keeping it moving down along the line and having delay with nothing happening I specifically included that the first report should be back to the executive and the board within 30 days and the board can see what is happening.

We should have a dual system where in certain circumstances — I shall make provision for this in the Bill — there should be independent investigation and the board's chief executive would have the power to investigate or he could cause something to be investigated by appointing somebody else. It may be a barrister or a solicitor or in the case of a complaint concerning fraud an accountant might be an appropriate person to appoint. He could act in this way with the permission of the board, if it considered that the public interest required that people other than the Garda Síochána should actually carry out an investigation or if the board was not satisfied with the nature of the investigation carried out by the Garda Síochána, or was not satisfied that the matter had been properly investigated. There is no fundamental disagreement there with what has been stated on either side of the House.

Minor complaints can be dealt with informally. This would have to be by consent. What one person would consider minor, another person might consider major. A complainant might consider it to be major. This has to be taken into account also.

If it transpires that an investigation discloses a criminal offence, it has then to be referred to the DPP. It is up to the DPP to decide whether criminal charges are to be taken. If, on the other hand, a transgression which is less than a criminal offence is disclosed, merely a breach of discipline rather than a criminal offence, there must be some adjudicating process. I am suggesting that a sub-committee or members of the board would act as adjudicators. They would have the right to decide what kind of disciplinary action should be taken: whether somebody should be reprimanded, demoted or dismissed. As this is a judicial procedure, one would have to give the right of appeal to a garda against the decision of the tribunal. This must be given to an appeal board. It would be appropriate that an existing Circuit Court judge should be involved as there is no point in duplicating personnel. An existing Circuit Court judge could be used as the chairman of an appeal board. This is the kind of formulation of which I speak.

The core of the amendment relevant to the complaints procedure is that it cannot become law until the other House and this House are happy with the proposals I put before them. The same applies to the regulations. Senators Eoin Ryan and Lanigan's amendment and my amendment, which was the Seanad amendment slightly changed by the Dáil, have the same net effect. We should not try to legislate detail in advance of a major Bill coming before the House. What is needed is a barrier to prevent the implementation of these controversial sections until this House and the other House has adequate time to discuss them. I am opposed to Senator Eoin Ryan's and Senator Lanigan's amendment for this reason and also for technical reasons.

There is the problem of using the word "independent". This could cause problems at a later stage. It is conceivable that the essential provisions of the Bill could be challenged in the courts on the ground that they were brought into force before a fully independent complaints commission had been established. Successful detentions and subsequent convictions could be rendered invalid. There are real problems in this area which I spelt out in detail in the Dáil and which Senator O'Leary spelt out here again.

There is also a problem in relation to the use of the word "adequate" in reference to the regulations. What does "adequate" mean? Adequate to whom? To the detained person or adequate to the gardaí who need to be protected against false allegations? "Adequate" means adequate to the Dáil and Seanad so that the regulations will be approved by both. That is the test of adequacy. Since the Dáil and Seanad have to approve these safeguards anyway——

We will be the test of it.

(Limerick East): Yes, so we do not need it in that sense. There is no major difference in substance between the two amendments. The amendment originally accepted by the Seanad and slightly amended by me for the reasons I have outlined which have strengthened it somewhat, is every bit as good as the substitute amendment. The final test of it will be here and in the other House where we will have to go through all stages of the complaints Bill.

As to the exclusion of ranks above Chief Superintendent, there is nothing in the amendment which states that it cannot be extended, either before publication of the Bill or during Committee Stage, to include Assistant Commissioner or Commissioner as the case may be. I shall take that view into account. The fact that we are saying Chief Superintendent here is to keep it in line with what I originally intended, but since we have the opportunity of having a preliminary debate and getting the views of both Houses on the kind of complaints procedure they would like to see, I shall keep this in mind. I am open also to the advice of the House as we go through Committee Stage.

I have dealt with every point in a general way. If I had more time I would deal with the points specifically raised by each Senator. In the general remarks I have made I have covered the areas of doubt raised by Senators.

Question put.
The Seanad divided: Tá, 31; Níl, 21.

  • Belton, Luke.
  • Browne, John.
  • Bulbulia, Katharine.
  • Burke, Ulick.
  • Connor, John.
  • Conway, Timmy.
  • Cregan, Denis (Dino).
  • Daly, Jack.
  • Deenihan, Jimmy.
  • Dooge, James C. I.
  • Durcan, Patrick.
  • Ferris, Michael.
  • FitzGerald, Alexis J. G.
  • Magner, Pat.
  • O'Brien, Andy.
  • O'Mahony, Flor.
  • Fleming, Brian.
  • Harte, John.
  • Higgins, Jim.
  • Hourigan, Richard V.
  • Howard, Michael.
  • Howlin, Brendan.
  • Kelleher, Peter.
  • Kennedy, Patrick.
  • Lennon, Joseph.
  • Loughrey, Joachim.
  • McDonald, Charlie.
  • McGonagle, Stephen.
  • McMahon, Larry.
  • Quealy, Michael A.
  • Robinson, Mary T.W.


  • Cassidy, Donie.
  • de Brún, Séamus.
  • Ellis, John.
  • Fallon, Seán.
  • Fitzsimons, Jack.
  • Hillery, Brian.
  • Honan, Tras.
  • Hussey, Thomas.
  • Killilea, Mark.
  • Lanigan, Mick.
  • Lynch, Michael.
  • McGuinness, Catherine I. B.
  • Mullooly, Brian.
  • O'Leary, Seán.
  • O'Toole, Martin J.
  • Robb, John D. A.
  • Rogers, Brid.
  • Ryan, Brendan.
  • Ryan, Eoin.
  • Ryan, William.
  • Smith, Michael.
Tellers: Tá, Senators L. Belton and J. Harte; Níl, Senators W. Ryan and Séamus de Brún.
Question declared carried.

In regard to the Order of Business today, we have made relatively slow progress on the business ordered. My proposal is that we should immediately proceed to take items 1 and 3 and then pass to Private Members' Business at 6.30, if the House will agree.