The Minister will be aware of the changes that were made in section 1 in the other House. There is a later amendment in the name of Senator Durcan. One of the changes which struck me as being of particular significance is that specific references to the Garda Síochána (Discipline Regulations) 1971 have been deleted from section 1. The definition of breach of discipline has been changed. Previously a breach of discipline was defined as meaning an act or omission standing specified for the time being as such in the regulations or in any of the other regulations made under section 14 of the Act of 1925. I understood that to mean that all breaches of discipline in respect of regulations made under the Act of 1925, which included the 1961 regulations, were all covered by this complaints procedure and by the definition of breach of discipline. That has now been changed to include only those items specified in the Fourth Schedule. The Fourth Schedule is only a limited list of items. Would the Minister like to comment on that point? Did it refer to all breaches of discipline at one stage and is it now confined only to those in the Fourth Schedule?
Garda Síochána (Complaints) Bill, 1985: Committee Stage.
A breach of discipline is defined to mean either conduct specified in the Fourth Schedule and all types of conduct specified there, non-compliance with a direction to furnish information in accordance with section 7 subsection (9), and a conviction by a court for an offence which was the subject of a complaint to the board. As Senator O'Leary has pointed out, the Fourth Schedule was added to the Bill by way of a Committee Stage amendment in the other House. An admissible complaint is now defined by reference to that Schedule in section 4 (3) (a) (iii). Up to now a breach of discipline was defined by reference to the Garda discipline regulations of 1971. The new approach, which is adopted in the Bill as now before us, has a number of advantages. It makes for easy reference since a member of the public or anybody acting on his behalf, or somebody advising him, will get all the relevant information in the Bill. He does not have to look any further than the Bill for the information. It also makes it possible to exclude certain breaches of discipline which are of purely internal concern to the force, for example, disobedience of orders which are now covered by the Schedule to the 1971 discipline regulations.
Another important feature of the new definition is that the definition itself, and not the Fourth Schedule, includes the existing disciplinary offence of a conviction by a court for an offence. That change in itself has two effects. A member of the public cannot now complain to the board about a conviction per se but the board will have power to deal with the issue of a member's continued suitability for retention in the force when a complaint has been originally made to the board and the subsequent investigation leads to a criminal conviction.
If the Bill as presented to the Dáil had been unamended, would the draft regulations to which we have given effect this evening come within the earlier definition of breach of discipline?
Yes, they would and still do.
Still do?
Yes.
They still come within the breach of discipline. How is that? Under what section?
Because a breach of the procedure set out in the regulations on the treatment of persons in custody in itself would be construed to be the kind of conduct set out in the Fourth Schedule. That is in itself a breach of discipline.
Are you saying, Minister, that all breaches of the new regulations to be made by yourself, as Minister for Justice and approved by this House, for the treatment of persons in custody in Garda stations will be referrable and admissible complaints? I do not read it that way.
I would like to follow up on the point Senator O'Leary has just raised in relation to breaches of the regulations applicable when persons are in Garda custody. If there is a breach of these regulations — and this is a point I raised when we were discussing the regulations earlier — will the affected person, if he makes a complaint, have that complaint dealt with under this Bill or will he have the complaint dealt with under the Garda Síochána Discipline Regulations, 1971, or under the new regulations which are to supersede them in due course? It seems to me that the only section of the Fourth Schedule of this Bill which would be applicable is paragraph 4. That is the paragraph which reads as follows:
Abuse of authority, that is to say, oppressive conduct towards a member of the public including (a) or (b).
It would appear to me that a member could be in breach of the regulations that we discussed earlier. The member might not be guilty of oppressive conduct towards a member of the public. I am a little worried as to whether we should write into the Fourth Schedule of this Bill specifically "a breach of the regulations governing persons in Garda custody".
I invite Senator Durcan to have a look at the rest of the Fourth Schedule. The Fourth Schedule defines the breaches of discipline. Number 1 is discourtesy, that is to say, failing to behave with due courtesy towards a member of the public. Everybody is a member of the public. Number 2 is neglect of duty, that is to say without good and sufficient cause failing promptly to do anything which it is his duty as a member to do. The regulations we discussed earlier lay certain obligations on members of the force and it becomes their duty to do those things and in the manner they are described. If they fail to do those things or fail to do them in the manner they are described it is a breach of discipline.
What date does the Minister propose to appoint as the establishment day? Has he any idea of that?
I cannot give the Senator a specific answer on that. It will be the earliest possible day after the enactment. Of course, as the Senator will understand, a certain number of things remain to be fixed. It will be done as quickly as possible which is the reason, if I may make so bold to say so, I am very happy that the House is dealing with the matter as expeditiously as it is.
I move amendment No. 1:
In page 5, between lines 45 and 46, to insert the following new subsection:—
"( ) Where a complaint has been made orally it shall be the duty of the Chief Executive Officer to provide, from the information sent to the Board, a summary of the complaint to the person who has made the complaint. No further action shall be taken on the complaint until the summary is acknowledged as accurate by the signature or mark of the person making the complaint."
Section 4 deals with complaints to the board and obviously establishes in a quite detailed way the manner in which these complaints are to be dealt with. It lays down various statutory limits and that sort of thing. We can discuss them later. The main thrust of my amendment is to ensure that in all cases there will be a written document available which will be accepted by the person making the complaint as being the document and the substance of that complaint.
The purpose of this amendment is to bring complete certainty into what is being investigated. I think we owe it to the members of the Garda Síochána in respect of whom complaints will be made. A complaint being made in respect of the Garda will be a most serious matter. It will have the most serious consequences, and consequences which will certainly have a far reaching effect on the member's life and future prospects and good name. For that reason while the general system in the Bill is very tortuous and very complicated, I can understand the reason people sought to bring about such a carefully documented procedure. I think the least we owe to the people against whom complaints will be made is to ensure that they will always be reduced to writing. The Minister quite rightly envisages that some complaints may be made orally or verbally. I think that is quite right. It is right and proper. I think, of course, it will be preferable where a person commits the complaint to writing but, of course, we have to legislate also for those people who cannot write or who, for one reason or another, are not in a position to commit themselves to paper. I think in those cases, and recognising that the Minister has a duty to provide for those people and to have their complaints catered for, it is important that these oral complaints would be reduced to writing as is envisaged in the Act. Having been reduced to writing in the Act as is suggested — reduced to writing by the person who is receiving the complaint — I want to make sure that nobody is under any misapprehension that that is the correct summary of the complaint and that the complaint does not go ahead on the basis of what is subsequently alleged to be an inaccurate summary of the complaint that was made. Everybody, even those who cannot write, must ultimately be faced with the position that their complaint has been reduced to writing and they must acknowledge it. They must say: yes, that is what I am complaining about. If they are not satisfied with the result of the investigation afterwards they cannot say the reason they are not satisfied is that "the garda who took down my complaint only took down half of it and in addition to getting a beating around the head, I also got a kick in the ass" or whatever the additional ground of complaint would be.