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?