I asked the Minister to give me a good reason why the chairman of the complaints board should not participate in the decision making process about matters that should be excluded from the report on a complaint.
Garda Síochána (Complaints) Bill, 1985: Committee Stage (Resumed).
Question again proposed: "That section 6 stand part of the Bill."
Senator Ryan has over-summarised the remarks he made earlier this morning. It is not true to state as he did earlier that nobody from the machinery of the Garda complaints process to be set up under the Bill would be involved in the kind of decision to which we are now referring because the investigating officer would be one of the people who would make the kind of decision in question. The other people involved are the Garda Commissioner and the Minister for Justice who quintessentially — I am speaking of their office and not necessarily their person — are the people whose concern is the security of the State. The chief executive of the board to be set up does not have that specific role, therefore, his involvement would not be appropriate.
It reminds me of a famous case that went to the Supreme Court some years ago about whether the courts or the Executive could decide what was privileged in the case of a court appeal on a matter of planning law. The inspector's report was at issue. The Executive claimed that it was a matter of privilege that the Executive could decide not to produce certain information. The courts quite firmly and unambiguously ruled that it was a matter for the court to decide on these issues. This has consistently been the position in the courts. You cannot claim that matters are of national security and have that decision taken and arbitrated upon by the people who make the first judgment. There is no element of independence in assessing what is a matter of national security in this procedure. All the people involved will, of necessity, have a similar view. It is unrealistic to presume that a Garda superintendent, a Garda commissioner or a Minister for Justice will disagree substantially about what constitute matters of national security. By and large the Minister for Justice takes advice on national security from the Garda Commissioner. One can presume — this is not meant as a reflection on anybody — that senior Garda officers would share the view of the Garda Commissioner. The fact that there is no function for the board as distinct from the investigating officer is regrettable and downgrades the role and function of the appeals board. Nothing is involved other than a reluctance to let go of a traditionally well guarded area of responsibility.
Question put and agreed to.
SECTION 7.
Acting Chairman
Amendments Nos. 2 and 3 may be discussed together.
I move amendment No. 2:
In subsection (9), paragraph (c), lines 23 to 25, to delete "(other than a member who is the spouse of the member concerned)".
Subsection (9) provides for a procedure to be established whereby certain questions may be asked of a member of the force pursuant to a direction issued in accordance with the procedure laid down in the subsection. The original position appears to have been that the exclusion from the possibility of inclusion in a direction of a spouse of a member of the force who is himself or herself a member of the force was not in the original Bill and was inserted by the Dáil. The purpose of these amendments is to reverse that position and to hear why the Minister acceded to the view that a member of the force who is the spouse of a member who is being investigated should not be liable to answer questions. These are general questions. It has to do with conduct alleged in the complaint concerned if it arose in connection with the performance or exercise, or purported performance or exercise, by the member concerned of functions or powers conferred on him as such member. It has nothing to do with what he had for his breakfast or the number of times he went on holidays. It has to do with matters which arise directly out of the performance of his duties as a member. Why should a member of the force not be expected to conform to directions like that just because they happen to be the spouse of the member in question? I am aware of the principle of not treating husbands and wives as compellable witnesses against one another in criminal matters although I do not see much future for that principle in the law. It is not a principle which we should extend to investigations relative to the conduct of a garda arising in connection with the performance of his or her duties. The purpose of moving these amendments is basically to give the Minister an opportunity to explain why he felt it was necessary to include this.
It is a general rule in common law in criminal proceedings that a spouse cannot be compelled to give evidence against the other party to the marriage. Whatever Senator O'Leary's views about the future of that provision in law may be its existence is a fact. The Law Reform Commission recently issued a report on this matter. They recommended that we should continue with this rule. The rule derives from a concern for the protection of privacy in marriage and took account of the privileged nature of communications between husband and wife. It is closely associated with the principle that we should avoid self-incrimination. We have spent quite enough time in recent times talking about the closeness of the marital bond to obviate the need for me to go on at any great length about that principle.
It is a principle that has very wide ramifications in law and in the Constitution as we have recently heard, not that I would necessarily share all of the divagations of some of the statements made in recent weeks on that matter, but that is another day's work. The power conferred in subsection (9) is likely to be only very rarely used and a situation in which, were the Senator's amendment to be accepted, the subsection might be invoked against a member who is the spouse of another member would be even rarer. It could be argued that the invocation of this subsection in those circumstances would be discriminatory towards those members of the force who happened to be married to other members. Their spouses could be compelled to give evidence against them while members married to non-members of the force would not find their spouses so compelled.
The subsection would apply only where there is no possibility of criminal proceedings. It could be argued that the same considerations that underlie the rule against compellability of spouses as witnesses in criminal proceedings should apply with equal force in disciplinary proceedings where, as indeed as the Senator pointed out on the discussion of earlier sections, testimony could have very serious consequences for the partner to the marriage and where, in fact, the effect on the marriage would be just the same as if the testimony was given in a criminal case. There is something inherently wrong with using a provision such as this to compel a wife to give evidence against a husband or a husband against a wife. Given the fact that the principle set out there is so solidly embedded in law there would have to be very strong reasons for departing from that principle here, and I am not aware that any strong reasons have been adduced for so doing.
Amendment, by leave, withdrawn.
Amendment No. 3 not moved.
Question proposed: "That section 7 stand part of the Bill."
Will the Minister make a general statement on section 7 which will help us in the consideration of it? To what extent is the member who is the subject of an investigation under an obligation to answer questions in respect of events which gave rise to the complaint?
The member will be under an obligation to answer questions only where the procedure under subsection (9) is invoked. That is very clear from the drafting of the section. Since the Senator has asked if I will make a general statement——
But the member under investigation would be under an obligation——
Yes, where subsection (9) was invoked. Since the Senator has invited me to make some general remarks on this, there are one or two that I should like to make because this has been a matter of some discussion.
We are speaking now in the context of conduct arising in the course of the performance of the member's duty and in the course of that performance only. It is a well-established practice, both in the public service and private employment, that where an employee or servant, or whatever denomination we might chose to describe a person, is alleged to have been involved in conduct that is in some way improper or undesirable, the employer or representative of the employer can ask the employee to explain his or her actions. That is not just a principle of sound common sense but a matter of common practice. To make a provision of this kind in the Bill amounts to nothing more than putting members of the force in the same position as other employees in regard to conduct that may be held to have some undesirable aspects to it.
Contrary to the allegation that has been made in public, that we are singling out members of the Garda Síochána for special treatment in this regard, we are not. We are applying the same commonsense rule in this context as is applied to other public servants. Given the context in which this measure is framed, the Garda Complaints Bill and, given the wider context of which that Bill is a part, I think it is perfectly reasonable and highly desirable that we should have a provision of this kind.
I thank the Minister for that exposition and there are two points arising out of it to which I would like to refer. Getting back to my amendments which have been withdrawn, the Minister now informs the House — no doubt he is correct in saying so — that in certain circumstances the member himself may be under an obligation to answer questions in respect of certain complaints relating to matters connected with the performance or exercise of his duties. If he is under that obligation surely the principle of treating husband and wife together should be that the spouse should be in precisely the same position as the other spouse. The principle of self incrimination to which the Minister referred, and its extension to spouses, relates specifically to a situation where nobody is under an obligation under our legal system to incriminate themselves and therefore we say that because that is the general principle of our law, we will extend it to spouses as well. That is at least a legitimate exercise of judgement in that regard. Here we have a rather odd situation that where a direction is issued that the member will be under an obligation to answer the questions but the spouse will not. That is not the same thing. If the member was under no obligation, then I can agree with the Minister that the spouse should not be under an obligation either. Quite rightly the Minister in these limited circumstances, is putting the member under the obligation. Similarly the spouse should not be able to then take advantage of an exemption which has nothing whatsoever to do with the principal person involved. The Minister's answer to my amendment in that regard falls. I say that merely to emphasise the thinking behind my amendment, in a more lucid fashion, having got from the Minister the explanation with regard to section 7.
I would like to refer the Minister to my second point on section 7. The Minister has stated now in this House and he stated on the Second Stage that he is not placing members of the Garda Síochána in any position different from that of other employees, whether they be State or other employees. I would go further than the Minister. I did so in my Second Stage speech and I would like to bring this to his attention again, that is, that he is going further than other employers, that he is giving a greater protection than is given to other employees. If somebody is working for an ordinary employer and there is an accusation that they fiddled money or did anything which might be a criminal offence and if they are called on to give an explanation to their employer, they cannot say that because there is a possibility they will be charged with an offence, they will not give any such explanation. They have a perfect right to stay silent of course, under the law but the employer has a perfect right in the meantime to ask them would they mind explaining why they are so much short in their cash. The employer could pursue the matter and indeed suspend or dismiss the person on the basis of that. What the Minister has done is not to place the members of the Garda Síochána in the same position as other employees but to place them in the more advantageous position whereby if they can raise the suspicion that there is a possibility that an offence has been committed, that is the end of the matter until all the procedure is gone through. Nobody else is in that position. They are in that position vis-á-vis criminal investigation, but they are not in that position vis-á-vis their employer and employee relationships. The residual position with regard to the members of the force is that they are in a far superior position after this and have far more protection than the ordinary member of the public dealing with his ordinary employer. My criticism is that almost any complaint is going to have the possibility of being a criminal offence. The member is almost being invited to refuse to answer questions relative to the complaint. In those circumstances the investigation of complaints where there is a theoretical possibility of it being a criminal offence, right up to the stage where it comes back to the board, is going to be very difficult. It is going to render the whole procedure inoperable.
The vast majority of complaints will contain an element where there is a possibility of a criminal offence. Every member asked about that is going to say: "there is a possibility that I will be charged with a criminal offence arising from this so I am choosing not to say anything". As a result of that the investigation of complaints is going to be very difficult. We have gone overboard in protecting what the members of the Garda Síochána and their representative bodies like to call the right of silence, confusing the fact that the ordinary general public may have a right to silence with regard to criminal matters, but do not have any right to silence with regard to civil matters which are being investigated contemporaneously, unless they go to court and establish such a right to silence. They certainly have no right to silence as normal general practice.
I do not share the Senator's view that at the end of the day this provision would be inoperable. In any particular case a member would know that at the end of the day he could be compelled to provide information. I do not intend to comment on the Senator's view as to the position in which this places members of the Garda Síochána. I have given the House my views on that today and on previous occasions. I did say to the Senator at an earlier stage that I would follow in the same direction as the Senator but in his wake on this matter.
With regard to the first part of it, the Senator in referring back to my previous remarks and my reference to the privilege against self incrimination, is actually standing my argument a little on its head. The first point I made was that it was a general rule that spouses were not compellable and that that rule originated as a protection for the privacy of marriage. In addition to that it was closely associated with the privilege against self incrimination. I did not posit the privilege against self incrimination as the only or even the main reason for this rule. So to the extent that the Senator's argument depends on that ground to take issue with my position, it is not well founded. The basic consideration here is the protection of the privacy of marriage. That is a sufficient ground for taking this line on this matter.
Obviously I can differ with the Minister's interpretation. I would like to make one brief comment. There was an amendment in the Dáil which refers to subsection 9(e) whereby a requirement was inserted in that paragraph, that before the investigating officer concerned can bring into operation the requirement to answer questions, he must inform the member in writing. I support that. I think it is correct and proper. If it had not been there I would have proposed it. However, it does show how well members of the force appreciate the importance of things being done in writing where their own interests are at stake and they are right. But I think the Minister could learn from that that there are other cases such as the one we spoke about this morning where the members themselves as well as other people need to be protected by things being put in writing.
Question put and agreed to.
Section 8 agreed to.
SECTION 9.
Question proposed: "That section 9 stand part of the Bill."
Section 9(2) states:
It shall be the function of a tribunal to decide in relation to a matter referred to it as aforesaid—
(a) that the member concerned has not been in breach of discipline, or
(b) that such member has been in breach of discipline as alleged, or
(c) that the facts established constitute another breach of discipline.
Then it goes on to say:
provided that a decision under paragraph (c) of this subsection shall not be made unless the tribunal is satisfied that the other breach concerned is less serious than the breach alleged (that is, that it is one which in the circumstances of the particular case merits disciplinary action of a less serious nature than that warranted by the breach alleged) and that such a decision would not be unfair to the member concerned having regard to the fact that the other breach concerned is not the breach that was alleged.
This is a rather serious provision and one which could turn out to be most unfair to the person who is charged in spite of the fact that the section says that the decision would not be unfair to the member. That proviso could be read in two ways. It could be read in the sense that the disciplinary action would be less serious than that in relation to the actual charge against the member in the first place. But it could be that even though in the long run the member would not be subject to such a serious disciplinary action he might in fact, be found guilty of something which he would regard as being very serious.
I will take an example which may not be very suitable but, which, nevertheless, will illustrate the situation. A person could be charged with drunken driving. His main defence would be that he was not driving the car at all. He would pay almost no attention to the drunken aspect of the charge because he felt that he had a complete defence on the basis that he was not driving. If you had a situation of that kind, in the end the tribunal would say they were satisfied that he was not driving but that he was drunk. The member concerned would say: "I never devoted any attention to this question of whether I was drunk because I thought I had a complete defence on the other count, but I certainly object most strenuously to the finding by the tribunal that I was drunk at the time and that I did not even have an opportunity to defend myself on that basis." That may not be a very suitable illustration but I can see circumstances where somebody at the end of the day would find himself in the situation that while the actual disciplinary action would be quite mild, he would be found guilty of something which he never devoted his mind to, never defended himself against. He would be found guilty of a breach of discipline in relation to something he did not pay much attention to. This is a rather dangerous proviso. The saving clause, that such a decision would not be unfair to the member concerned, could be interpreted as meaning merely that because the disciplinary action was much milder, it would be unfair to him. But the member concerned might consider it to be quite unfair because he would, inadvertently, find himself guilty of a breach that he never defended himself against or paid much attention to. I think this is dangerous. It might occur only rarely but we should not be very satisfied with such a proviso.
While I understand the point Senator Eoin Ryan is making, we should be conscious of the fact that we are dealing with a Bill which is intended to set up a procedure for dealing with complaints made against the Garda by members of the general public. That should colour our view on this. In the event that there is conduct about which a complaint is made I would suspect — of course, both the Senator and I are in the dark on this until we see how it works out in practice — that if there are grounds in the complaint for the investigation of several different possible breaches, that each one would and should be taken on its own merit. To that extent it would tend to be a fairly rare case in which this would happen.
However, I would have to point out that a provision similar to this has been in the Garda Discipline Regulations since 1971. I am informed that it was put in at the request of the Garda representative side. It has been in the regulations since 1971 and a similar provision is in the revised regulations which have been discussed recently with the Garda and there has been no objection to it. I take the point that that might be regarded by the House as nothing more than a useful and interesting piece of information which need not deflect the House from examining the issue before us.
Given the fact that we are talking about complaints by members of the public against the Garda, it is desirable that we ensure that the procedure which is there is one which not only allows but, as far as possible, obliges the tribunal to look at each and every aspect of any complaint which might be made. The provision itself produces a situation in which the tribunal cannot decide that a member is guilty of a breach of discipline other than the one which is alleged unless it is satisfied that that other breach is less serious than the breach alleged. As the Senator has pointed out that decision would not be unfair to the member concerned.
If the tribunal finds evidence that the member in question might be guilty of a breach that is more serious than that which is alleged it would not have the power under this provision to proceed and impose a heavier penalty in respect of that breach.
It does mean that he may be found guilty of a breach with which he has not been charged, for which he has no reason to defend himself against, because as I understand it, this breach would not have been mentioned when the member was brought before the tribunal. I can understand the situation where, for example, people are charged with dangerous driving. It is a fairly frequent occurrence that they are not found guilty of dangerous driving but are found guilty of careless driving. The whole conduct of the case would be in relation to how the person drove the car and in these circumstances the lesser breach would have necessarily been part of the proceedings and the person would have been defending himself against the way in which he drove the car.
In the course of the kind of proceedings we are talking of, the tribunal would say that the member concerned was not in breach of discipline in relation to the matter before the tribunal but that they are going to find them guilty of something else, something entirely different that happened to arise in the course of the proceedings. At the end of the day the disciplinary action is going to be less than it would have been if he had been found guilty of the first breach but it could be in some area completely different and one which the member might have very strong feelings about. He might in fact be much more sensitive and much more concerned about being found guilty of a lesser offence because it would be something that he would regard as being more serious from the point of view of his character and so on even though the disciplinary action was less.
I cannot understand in my own simple logic how anybody can be sent before a tribunal or have a tribunal investigate complaints made against him and that in the course of the proceedings it is possible to find that they are not guilty of either of the two main offences before the court but can be found to be in breach of discpline, something they are not being charged with. It defies my simple primary school logic and also my army experience in terms of tribunals or court martials. It appears to be inconsistent with the way a normal criminal would be treated in court. I am doubtful that, in the course of evidence in any court, if a judge discovered by inference from the charges in the court that the man was guilty of something else, he would then proceed to punish him for that other offence. It is not a direct analogy but there is some sort of an analogy there. It is a bit of a puzzle to me. It makes it more difficult for me to understand. I want to see people treated properly while in custody. I want to see the Garda answering for their misdemeanours but we are dealing with a force and we have to deal with the question of their morale and their rights. They have rights the same as anyone else. They are citizens with a vote. If, for example, anyone stands in the way of a policemen to try to hinder him from making an arrest in an incident involving a breach of the peace he is justified in taking that person into custody.
We are told that something may happen where it may be necessary to decide whether a member was guilty of a certain breach of discipline or guilty of a breach of discipline as alleged. I do not understand the "or" in that context. When you remember that the Garda are also entitled to arrest persons who obviously were about to commit breaches of the peace the chances are they would never be out of trouble if such cases were to be dealt with by the tribunal. It would not be a double jeopardy situation but the member would not only be on trial for what is before the tribunal but would actually be on trial for charges that had not been made against him and in the course of events it might emerge that there was another breach of discipline. It defies my primary school logic to see how this question can be dealt with in that way.
We are dealing with the question here of a lesser discipline, but there is always a danger of something arising that would warrant a greater punitive measure and when we think of what can happen to a garda arising out of the proceedings of the tribunal, we realise that we are dealing with a very serious matter. We are talking about his job, about his being dismissed or forced into retirement. We are talking about his being given the option to resign to save his character in certain circumstances. We are talking about reducing him in rank, about taking some of his power away though the proceedings might only end up with a reprimand or a caution. In effect we are covering a very wide area where a member can be disciplined for something that he is not even charged with.
As distinct from many other citizens in modern day society, the garda is liable to be dealing with for example, the whole question of communications, crowd control, murder, traffic fatalities, offences against the State or offences against property, aggravated robbery, burglary, arson and so on. Things are liable to go wrong because of the circumstances this person finds himself in and suddenly, through no fault of his own, he is caught out on a disciplinary matter. On the other hand if it was a serious offence he would be entitled to be charged separately for it anyway. I am very concerned on that matter. I am concerned that people be treated properly when they are detained. I am very concerned that the laws are applied properly when the powers of arrest are to be exercised. I am very concerned that all of the legal procedures when dealing with a person in custody or in taking a person into custody are handled properly. I am also concerned for the citizen who has to uphold the law, that he would not be placed in a situation where he would be at a disadvantage compared with any other member of society.
Senator Eoin Ryan has raised a very interesting point. Section 2 of this Bill follows very closely on section 9(1). Subsection (1) states:
the chief executive shall determine the particular breach or breaches of discipline to be alleged against the member...
the chief executive shall notify each member of the tribunal of the breach or breaches of discipline aforesaid and...
the tribunal shall hold an inquiry into the matter unless the conduct alleged in the complaint concerned, or conduct which is in substance the same, is admitted by the member concerned.
That last paragraph is the most important.
The tribunal, therefore, has to examine a particular breach of discipline which I presume is a breach of discipline specified in the Fourth Schedule to the Bill, the contents of which are specific. We then move on to subsection (2)(c) which reads:
that the facts established constitute another breach of discipline:
Provided that a decision under paragraph (c) of this subsection shall not be made unless the tribunal is satisfied that the other breach concerned is less serious than the breach alleged ...
What is less serious? We are talking about breaches of discipline as specified in the Fourth Schedule to the Bill. It is possible that a member could be charged with a breach of paragraph 6 of the Fourth Schedule, that is, "misuse of money or property in the custody of the Garda Síochána belonging to a member of the public" and it may happen that the tribunal would hold that a charge under that paragraph would not stand. But if the member is in the situation whereby a breach of discipline can be held in respect of one of the other paragraphs specified in the Fourth Schedule, for instance, 2 (a)(i) or 3 or, indeed, 4, it leaves the matter very open ended. I think there is a certain lack of logic in this subsection 2.
The point raised by Senator Eoin Ryan is a reasonable point. It is reasonable in the sense that if a member appears before a tribunal, he does so on the basis of a specific charge. The member presumably is there or is represented to meet that specific charge and that charge relates to a specific breach of discipline as specified in the Fourth Schedule to the Bill.
Bearing in mind subsection (2) that member can now find himself in a position where he can be found guilty of a whole range of breaches of discipline specified in the Fourth Schedule and in respect of which he is not charged. I must say that it caused me a certain amount of worry. The other question that arises in relation to the subsection is the determination of what is a less serious nature and that, again, is another difficult matter. I must say for the reasons expressed by previous speakers, I am not altogether happy with subsection (2) as it stands.
I must say to Senator Durcan how pleased I am that the debate is having its proper function in drawing his attention to things about which he feels less happy than he did, perhaps, before the debate began.
I think I can put Senator Harte's mind at rest about one particular aspect of this provision. Senator Harte appears to fear that there was always the danger that a more punitive measure would be involved than was originally thought. That is not the case because the provision makes it perfectly clear that the tribunal cannot decide that a member is guilty of a breach of discipline other than the one alleged unless it is a less serious breach of discipline so that there is no question of any possibility of a more punitive measure being the outcome.
I have to say to Senator Eoin Ryan and Senator Durcan that they should not find in this measure any enormous departure from the practice in our courts in terms of the kind of verdicts that can be made on foot of specific charges. Senator Ryan did himself mention one case which is fairly common where people are charged with drunken driving and are convicted of careless driving. People are frequently charged with dangerous driving and convicted of careless driving. People are periodically charged with murder and convicted of manslaughter. People are frequently charged with a particular kind of assault and convicted of a less serious kind of assault.
There is no huge departure from that kind of practice involved here. If, for example, a complaint against a member were being investigated which alleged abuse of authority on the part of the member, for instance, oppressive conduct towards a member of the public, it is perfectly conceivable that the tribunal investigating would conclude that the member was not guilty of abuse of authority or oppressive conduct but was guilty, for example, of discourtesy, that is, failing to behave with due courtesy towards a member of the public.
That would not be entirely out of keeping. It would be perfectly in line with the kind of practice in the courts that I mentioned a moment ago. If, on the other hand, during the course of an investigation into an allegation that a member acted oppressively, that he, for example, used unnecessary violence towards any person, it emerged that some other offence could be held to have been committed by the member, then if there was not a complaint about that, it would be perfectly open to the Garda Síochána authories in the framework of their own discipline regulations to take the matter up separately. It would be separately.
For those reasons I do not think there is, in comparison to our normal practice in the courts any particular innovation here nor do I think that the House should have any great difficulty in deciding that, perhaps, one kind of breach of discipline is less serious than another. Specifically, I would say it is very clear that if an allegation of oppressive conduct were made and a member were to be investigated and found guilty of discourtesy, I would think that oppressive conduct of the kinds set out in the schedule would be a far more serious offence than discourtesy. Again, there is not a hugh innovation here. As I said at the beginning in relation to Senator Harte's question, the tribunal cannot decide that a member is guilty of a breach other than that alleged unless it is a less serious breach.
On a question of fairness, I point out to the House that it is very clear that the tribunal could always be made amendable to a court if it were held that there was a breach of natural justice involved. Finally, and in any case if a member felt that he had been hard done by being found guilty of a less serious breach than the one that was alleged against him, with a less punitive sanction at the end of it, if he felt aggrieved by that or, or indeed, felt aggrieved at all, there is an appeal provision built into the Bill.
It may not be in a sense quite as serious but there is another aspect of this that I think makes this subsection what should be quite irrelevant because what could be done under this is that the member concerned could be found guilty of a breach of discipline that had literally nothing whatsoever to do with the complaint made by the member of the public. This Bill is to deal specifically with complaints made by the public. If they, for one reason or another, feel they have been imposed upon in some way or that something has been done by the Garda that should not have been done, at the end of the day a garda can be found guilty of a breach of discipline that has literally nothing whatever to do with the complaint made. The garda, if he re-establishes good relationships with the member of the public concerned, can say, "as a result of your complaint I was found to be guilty of such and such a breach of discipline and the member of the public could say "the law is an ass because I had no complaint whatsoever about that aspect of your behaviour, I complained about something different altogether and this just does not make any sense".
I can understand the qualification attaching to (c) but, at the same time, in the long run it comes down to the fact that he can be found guilty of something that he is not actually charged with, and on the basis of that some type of disciplinary action can be taken against him, even if it is less serious, less damaging than the others, he can probably suffer. I do not know how far the procedure can go. This is not clear. If the tribunal decide that the allegations that were made against him are not substantiated but that something less of a disciplinary nature is involved, what sort of punishment is to be applied? Will it result in a reduction in rank? Will it involve a loss of pay? Is it only a reprimand? Is it only a caution? Where does it go to? Where is the clarity? Where does it stop? Where does it start? There are five or six levels of punishment and if the tribunal decide that it is a less grave infringement or breach of discipline than was alleged, what punishment fits that? If, in fact punishment attaches to it, I still believe that this is not the way things should happen. The fact is that he is to be punsihed for something. Even a reprimand or a caution is a punishment. The person is going to be punsihed for something he is not, in fact, actually charged with.
I know on the surface it looks very well for a tribunal to sit and consider allegations, or perhaps one allegation, and to say: "he is not really guilty of that but we have to find him guilty of something and that will be a lesser offence. Therefore, we will find him guilty of that less offence. The other one cannot be established." As a result of finding him guilty of the lesser one, the punishment, too, will be less but, at the same time, it is punishment for something that he has not been charged with. So I suppose, on the surface, it looks just. I hope the Minister will prove to me that it is a just way of going about it. On the other hand, my simple logic does not help me to understand how one can be found guilty of something that one is not actually charged with and arising out of that that there is actually some sort of punishment.
Manslaughter instead of murder for instance.
We are not comparing like with like here. We are not dealing with the fellow now who is going to be in court and who is a hardened criminal. We are dealing with the person who is caught up in a whole range of circumstances and who is very vulnerable, indeed. That is why we have got to be very careful how we treat them and that is what I would be concerned about.
I think the problem here is that the waters are becoming muddied. They are becoming muddied because there is an interlinking between the Garda Síochána Discipline Regulations, 1971, which deal with internal inquiries on the one hand, and the complaints Bill which will deal with complaints by members of the public on the other hand. It is interesting to note that a lot of the contents of the Bill we are discussing follow very closely the contents of the 1971 discipline regulations. While we accept that the regulations in the Bill are for two different purposes they do mirror one another in terms of the language used and some of the procedures followed. Number 16 of the 1971 regulations provide that the inquiry shall decide that the member concerned has not been in breach of discipline, secondly, that such member has been in breach of discipline as alleged or, thirdly, that the facts established constitute another breach of discipline. One is forced to the conclusion that, perhaps, that is an appropriate matter to include in internal regulations which deal with internal breaches of discipline and which will be determined by the Garda themselves.
Those regulations which will shortly be replaced also I understand, specify in the Schedule to them the types of breaches of discipline to which they apply. It may be appropriate, to have a provision of that nature in the internal regulations where the member is purely subject to the rules and regulations of the force of which he is a member and the breach of discipline is determined within that force. On the other hand, the Bill deals with something which is based on a complaint by a member of the public, a complaint which is made in the manner specified in this Bill and which is processed in the manner specified in this Bill. Is it right, therefore, that a complaint made by a member of the public in relation to a particular breach of discipline specified in the Fourth Schedule of this Bill should, in fact, leave the member open to conviction, as it were, in respect of another breach of discipline? I see the two situations as being different and I am not altogether satisfied, therefore, that paragraph (c) is appropriate for inclusion in a Bill which deals with complaints by members of the public.
I find it a shade disingenuous of Senator Durcan to suggest that a provision of this kind may be suitable for the internal disciplinary regulations of the Garda but is not suitable in relation to complaints made by the general public, because what Senator Durcan would be suggesting there is that a fairly severe rule is perfectly in order when we are talking about internal discipline in the Garda but is not perfectly in order when we are talking about complaints made against gardaí by members of the general public. I do not accept that point of view and I have made the point earlier in this debate and in the other House that members of the Garda have a right, as, indeed, have members of the public generally, to be treated in the same way as any other citizen against whom an offence is alleged. I cannot see any reason there for treating them differently.
Senator Harte still has some worries about the appropriateness of this provision and Senator Durcan has noted that the Bill follows the 1971 disciplinary regulations. For Senator Harte's benefit I should repeat that, that a very similar provision has been in the Garda Discipline Regulations since 1971. It was inserted I am told — I was not involved in it then — at the request of the Garda representative organisations at the time. A similar provision is in the new discipline regulations which have been negotited recently with the Garda. Therefore, so far as that goes there is no difficulty about this provision from the point of view of the Garda representative organisations. I must say, and I would ask the House to think about the matter on these lines, it seems to me to be perfectly reasonable and legitimate that we should have a provision of this kind. Section 9 (2)(c) provides:
It shall be the function of a tribunal to decide in relation to a matter referred to it as aforesaid — (c) that the facts established constitute another breach of discipline...
Perhaps, it was a slip of the tongue on Senator Harte's part that he suggested that as long as there was a complaint against a member of the Garda Síochána the tribunal find that even though it appeared he was not guilty of the conduct alleged against him, they had to find him guilty of something. I do not think that is the way the tribunal would go about its work. If it were, the tribunal would deserve instantly to be dismissed. If, following the provision of article 9(2)(c), the tribunal finds that the facts established constitute another breach of discipline, it would seem to me to be not very desirable at all that the tribunal should say to the member concerned: "the following allegation has been made against you. We find that you are not guilty of that alleged breach of discipline. We find that the facts established constitute another breach of discipline but, since no specific allegation has been made against you for that breach of discipline, we are going to ignore it. We will drop the whole thing and wait around until maybe some member of the public comes along and makes that allegation against you".
On the other hand, it seems to me also to be reasonable and desirable that if the tribunal are faced with an allegation that a particular member of the Garda used unnecessary violence towards any person with whom he is brought into contact in the execution or purported execution of his duty and find on investigation, that he did not use unnecessary violence but that the facts established indicated quite clearly that he was guilty of discourtesy, that is to say, failing to behave with due courtesy towards a member of the public, they should say so to him. They should say: "we find you not guilty of using unnecessary violence but we do find that in this particular case you acted with insufficient courtesy towards a member of the public and we, therefore, find you guilty of a less serious breach of discipline. While you are not guilty of the first, which would have carried a particular penalty, we find that you are guilty of the second, which carries a lesser penalty".
It seems that is something both necessary and desirable in the interests of the general public and of good discipline and practice among the Garda. It is to bring that about that this provision is in this Bill. It was to bring that about that a similar provision was in the 1971 Discipline Regulations and it is to bring that about where no member of the public is complaining that the same provision is in the new Discipline Regulations that have been discussed and agreed with the Garda representative organisations.
I should like to put on record, if it came across that I had doubts that the tribunal would concoct something, that that was not my intention. What I was concerned about was that if one charge was there and there was a possibility of exonerating the person on it, that that possibility should be taken up even though some evidence might be there that he was guilty of a lesser charge and arising out of that he would get a punishment. Having listened to the Minister's explanation about the 1971 regulations and what the Garda have agreed, I accept the situation.
I should like to make one more brief remark. I am sure Senator Eoin Ryan will forgive me for jumping in ahead of him on this. I neglected to say at the conclusion of my last remark that we should also look at it from the point of view of a member of the public. If there is a member of the public who believes — and I will take the same example that I used earlier on — that a garda used unnecessary violence towards somebody present while there is some unruly behaviour going on in a street demonstration, for example, by pushing him too roughly out of the way in an attempt to clear the street and made that allegation and complaint and had it investigated, that person, who might feel very strongly that the garda had done something wrong could very well feel aggrieved. This is one of the things we want to deal with.
If the only answer that came back from the tribunal was: "we have examined this case and we find the garda did not use unnecessary violence", the person might say on reflection: "well, maybe he did not use unnecessary violence towards me but he could have been a bit more polite and considerate in the way he dealt with me". That person is more likely to understand that justice has been done and that his case was properly examined if — and I say "if" because one does not know — the answer that he got back was that the garda had been cleared of the charge and he would have to be cleared of each specific charge if it is not found against him. If the answer came back: "we found that the garda did not use unnecessary violence towards you but we found him guilty of discourtesy and he is being reprimanded accordingly or will have his ears pinned back one way or another". That would explain far better to the general public that a reasonable and thorough view was being taken of the complaints made.
The Minister is making the convenient assumption that the breach of discipline found under sub-paragraph (c) would always be one of the same nature as the breach of discipline with which he is charged. He has given the kind of examples which I gave myself in regard to dangerous driving and careless driving. The trouble about it is that it is not under this section as it now stands. It is not necessarily the case at all. It may be completely different from the breach of discipline with which he is charged. That being the case, it seems to me that this is undesirable because you end with a situation in which a Bill is designed and drawn up to deal with complaints from the public and you are going to find a member is found guilty of a breach of discipline in regard to something that the member of the public never complained about, is totally different as far as he is concerned. At the end of the day he would not understand what happened. He would say: "this has nothing to do with my complaint. I initiated this procedure and at the end of the day I find that the member has been found guilty of a breach of discipline that has nothing whatsoever to do with the complaint I made".
For the same reason, if the breach of discipline of which the member is found guilty has nothing to do with the complaint against him, then it is more than likely that he would not have had the opportunity of defending himself against it because it was something completely different. He would not be conscious that that is the problem and the case he has to meet. He would not be in a position to defend himself, merely to say that it is going to be a lesser fine. He would, in fact, not be able to defend himself. He might regard the breach of discipline found against him to be thoroughly objectionable even though the fine might not be very serious. It certainly could be argued and, possibly will be argued, that this is a breach of natural justice that he should be found guilty of a breach of discipline which he was not aware was being alleged against him and of which he had no opportunity of defending himself. For that reason this subsection which from one point of view seems to be reasonable enough and a common sense type of thing to put in, in certain circumstances it could be both irrelevant for the purposes of the Bill and very serious and contrary to natural justice as far as the member is concerned.
I am not starting off on the assumption that other charges would always be of the same nature as the original allegation. I will go along with Senator Eoin Ryan to this extent that it is a simplifying assumption for the purpose of facilitating the exposition. The principle remains the same because we are dealing with the requirement for this to happen under section 9(2) that the facts established constitute another breach of discipline.
I draw the attention of the House to section 9(l)(a) which provides that the chief executive shall determine the particular breach or breaches of discipline to be alleged against the member concerned before the tribunal. The chief executive is the one who receives the complaint, pronounces on its admissibility and then formulates the breach which is to be alleged against a member. Without a provision of this kind, there would always be a temptation on the part of the chief executive to allege a number of different breaches against the possibility that a particular one might not stick but that if they were formulated in a different way it might stick, and that is not, I think the House will agree, an entirely unkown situation. It is undesirable. I will come back to the point that for this to happen — the matter that the Senators are worried about — requires that the facts established constitute another breach of discipline. As I said earlier on as regards the question of fairness, that is always something that can be referred to a court. It is equally something that would properly be the subject of discussion under the appeal procedure that is provided for in the Bill, a procedure which has been in existence since 1971. As far as I am aware, it has not caused any particular problems or allegations of unfairness in practice, and unless it is demonstrated to the contrary, it is one that we should continue in this Bill.
I welcome section 9(3) and (4) in so far as they indicate a departure from the procedure specified in the 1971 regulations. In the 1971 regulations, where a breach of discipline is found by an inquiry established under the regulations, the matter is referred to the Commissioner of the Garda for the purpose of determining what sanction should be imposed. Under this Bill the tribunal who determines whether or not there was a breach of discipline will also decide the disciplinary action to be taken, and I welcome this. I would like an assurance from the Minister that the new disciplinary regulations, the new internal regulations, in so far as they deal with the imposition of a penalty will provide that the tribunal who determine whether or not there was a breach of discipline will also impose the penalty rather than having the matter referred to the commissioner as heretofore.
There is one small matter to which I would like to refer and in referring to it I would like to briefly say that subsection (4)(b) is a welcome addition to the options which are available. As a member of the Garda Síochána got older and nearer to retirement there was an undoubted temptation — I am not saying whether it was ever yielded to or not — in respect of a small breach of discipline not to bring about a situation where that person would leave the benefit of a livelihood and pension rights which he had accumulated over a long period of time. The insertion of subsection (4)(b) which was inserted during the debate in the other House is welcome because it means that particularly older members of the force can be dealt with in a more humane fashion and that is very important.
Also included in an amendment in the other House was subsection (5) which, like so much of this Bill, is a repetition of what is already in the disciplinary regulations. It is an unfortunate limitation on the range of disciplinary actions which should be available. It does two things: it limits the amount of any reduction of pay to four weeks and effectively says that when the amount of money to be deducted is determined no deduction in respect of any one period should represent more than 10 per cent of that, say, month's pay. In other words, if four weeks pay is to be deducted in total it should be done in sums, any one of which do not exceed 10 per cent of the member's pay. I understand that to be the meaning of the section.
There is not sufficient flexibility in the matter of the reduction of the pay in limiting it to four weeks. Many circumstances could arise which would fall somewhere between the reprimand and the reduction in rank and there is a need for a range of options with regard to disciplinary actions within those two sections which needs to be catered for. To permanently reduce a member of the Garda Síochána's salary and status in one thing; to reprimand him is obviously more serious than a caution and is the other extreme and tending towards smaller disciplinary action. In between the two of those the one available disciplinary action is a reduction in pay and to limit that to four weeks — I am not concerned about the 10 per cent element — is not sufficient. I would like to hear the Minister's explanation for the reintroduction of that.
I understand the concern that Senator O'Leary has in this regard as being a concern to ensure that there is the widest possible measure of flexibility in response to the findings on particular issues.
So that you are not forced by the circumstances to go to a more severe penalty. If you give very cut and dried penalties you are forced then either to reprimand, which would appear to be very small, or to reduce in rank, which would be the next highest one. I want something in between which I think would apply to a lot of the complaints.
If we look at the sanctions set out here, (a) is unambiguous dismissal; (b) a requirement to retire or resign — a very useful addition for the reasons the Senator has outlined; (c) reduction to such other rank in the Garda Síochána as the tribunal may determine. That becomes more flexible the higher the rank the member starts at. For a member of ordinary garda rank, there is no possibility of using that. For a member who has reached the rank of sergeant there is only one reduction in rank that can be brought about and that is part of the reason why there should be a provision for a reduction in pay.
I accept the point that a reduction in rank is also a reduction in pay; otherwise there would be very little sense in having different ranks. Obviously, the higher up in rank the member goes the more flexible the sanction at (c) becomes. For a member or ordinary garda rank or sergeant rank it becomes more important to have another route that can be followed. A reduction in pay of such amount and for such period as the tribunal may determine subject to the qualification in subsection (5) then becomes the matter of discussion. What flexibility is there? A reduction in pay of four weeks can be a considerable amount of money. In typical cases that could be an amount upwards of £1,000, which is a sizeable amount of money. The higher the rank the greater the sum becomes. At some levels in the force a reduction in pay of the equivalent of four weeks pay would certainly, if applied as a fine in a court, be regarded as a very stiff penalty, for example, if it was brought to the level of four weeks it could very often far exceed the fine which would be imposed in the District Court for a drunken driving charge. That is only one example among many. A reduction in pay of up to four weeks — leaving aside the 10 per cent provision which is not in dispute — can amount to quite a sizeable sum and the further on in service and the further up in rank the bigger it becomes when compared with the penalties imposed otherwise through our courts system, sums which fairly often are a matter of petition to the Minister for Justice for mitigation of the fine on ground of hardship or other grounds. In fact, there is a wide margin of variation in response that would be available by going as far as four weeks pay.
The Minister has made my case for me by reminding me that of course the rank of an ordinary garda cannot be reduced. Many of the complaints may relate to gardaí in their late twenties or early thirties who have little or no service in the force. The only option open then will be dismissal from the force and the requirement to resign or retire will not apply. One way or the other, whether you require a person to resign or dismiss him or her it is almost the same thing except in terms of personal status. The only other option available between these and a reprimand is a reduction in pay. Did the Minister consider whether suspension should be considered as an appropriate penalty? It is in order to increase the range of options that I put it to the Minister that there appears to be a very big gap and very little flexibility between reprimanding somebody and getting him out altogether. There is only one thing you could do, fine him up to four weeks' wages. This seems to be unnecessarily restrictive.
The Senator may feel it is unnecessarily restrictive. Even for a young garda up to four weeks wages can constitute a sum of upwards of £1,000. If that is the alternative to contenting oneself with the reprimanding him there is a fairly wide range of penalties that can be applied. If you are talking about a garda in his late twenties and you are looking at the difference between not fining him but simply reprimanding him and taking anything up to £800 or £1,000 from him by way of a deduction from his salary, it leaves a fairly wide range over which displeasure can be indicated to him.
I think the Minister used the word "fine" twice; the word "fine" is not included in subsection (4). Do you not consider that it would be an appropriate form of sanction? There is a fine under another name but of a very limited nature, one which is limited further by subsection (5). Surely the problem would be resolved by the removal of subsection (4)(d) and inserting instead the ability to impose a fine simpliciter.
A rose by any other name would smell as sweet. A fine by any other name hurts just as much. The very idea of the limitation there is in fact to put a specific ceiling on the amount of pay that may be deducted. There may be constitutional objections to imposing a fine under a procedure such as this.
Question put and agreed to.
Sections 10 to 13, inclusive, agreed to.
SECTION 14.
Question proposed: "That section 14 stand part of the Bill."
I merely want to say to the Minister that my failure to put down an amendment to this section is not because I have changed my mind and that the parliamentary draftsman has won the battle concerning the disqualification for membership of various quangos and other bodies set up under the authority of the House of the Oireachtas of people who are nominated as candidates for the Houses of the Oireachtas. In the special circumstances of this body, which is a quasi-judicial body, I do not mind the question of candidature inserted. It is not a defeat; I have to agree with him for once.
I can assure the Senator that his relative taciturnity on this issue is not being interpreted in the way he feared. His final remark anticipated the reply that I would have made had he put down an amendment.
Question put and agreed to.
Sections 15 to 18, inclusive, agreed to.
First Schedule agreed to.
Second Schedule agreed to.
Third Schedule agreed to.
FOURTH SCHEDULE.
I move amendment No. 4:
In page 30, after line 38, to insert the following:
"10. Prohibited spare time activities, that is to say——
(a) identifying actively or publicly with a political party,
(b) behaving in relation to political matters in such a manner and in such circumstances as to give rise to reasonable apprehension among members of the public in relation to impartiality in the discharge of duties,
(c) engaging (whether for reward of otherwise) in any activity which, though mentioned in sub-paragraph (a) or (b), is likely to interfere with proper discharge of duties, as being likely, to give rise to reasonable apprehension among members of the public in relation to impartiality in the discharge of duties or as being, for good and stated reasons, inappropriate for members of the Garda Síochána to engage in."
The purpose of the amendment is to insert a new paragraph into the Fourth Schedule of the Bill. The new paragraph which I seek to insert is as specified on the amendment sheet but there is one error in paragraph (c). I have drawn the error to the attention of the Minister's officials. After the word "though" the word "not" should be inserted. The words I seek to insert are therefore as follows:
"10. Prohibited spare time activities, that is to say——
(a) identifying actively or publicly with a political party,
(b) behaving in relation to political matters in such a manner and in such circumstances as to give rise to reasonable apprehension among members of the public in relation to impartiality in the discharge of duties,
(c) engaging (whether for reward of otherwise) in any activity which, though not mentioned in sub-paragraph (a) or (b), is likely to interfere with proper discharge of duties, as being likely to give rise to reasonable apprehension among members of the public in relation to impartiality in the discharge of duties or as being, for good and stated reasons, inappropriate for members of the Garda Síochána to engage in.
I would refer again to the Garda Síochána Discipline Regulations 1971. Regulation No. 6 provides that:
An act or omission described at a reference number in the Schedule shall be a breach of discipline and "in breach of discipline" shall be construed accordingly.
The Schedule to the 1971 regulations includes a paragraph identical to the paragraph which I now seek to have inserted in the Fourth Schedule to the Bill. The Schedule to the 1971 regulations also includes many other paragraphs which are included in the Fourth Schedule to the Bill as being breaches of discipline within the terms of the Garda Síochána (Complaints) Bill 1985.
The basis of my proceeding with this amendment is that I believe, first, that gardai increasingly, unfortunately, are engaging in politics and political activities at various levels and in various ways. This is something to be regretted. It is something which happens within all political parties. It is happening increasingly without regard to caution or propriety. The question is whether an engagement of that kind by a garda is appropriate for internal discipline regulations or whether it is a matter which is appropriate for the complaints Bill. Activity of this nature by a member of the force is a matter which should be more properly dealt with by the Garda Complaints Board or by a tribunal established by such a board rather than by an internal inquiry established by the authority of the commissioner. My reason for saying that is that there is a belief that there is a political complexion within the higher ranks of the Garda Síochána. There is a belief that the senior ranks of the Garda Síochána are held by people who have very definite political views. The question arises as to whether it is appropriate that alleged activity of this nature should therefore be dealt with within an internal police procedure or whether it should be dealt with by an independent complaints tribunal. I believe it is something which is appropriate for an independent complaints tribunal. I am surprised to find that this matter was not included in the Fourth Schedule. Perhaps it can be suggested that if a member of the Garda engages in activity of the nature I mentioned it is possible that he may be charged under the Fourth Schedule, but I believe that it should be specifically stated. I would ask the Minister if he would consider this amendment for the reasons mentioned.
The amendment would have the effect of adding prohibited spare time activities to the list of conduct set out in the Fourth Schedule which would constitute a breach of discipline. There is, as Senator Durcan has pointed out, a provision in the Garda Discipline Regulations which specifically prohibits a member from active involvement in politics and confers on the Garda Commissioner the power to prohibit members from engaging in other activities which he considers to be inconsistent with their position. Apart from the prohibition on political activity commissioners have prohibited some 12 other areas of activity, and involvement in them by a member constitutes a breach of the regulations. I do not intend to detain the House with these other areas but there are 12 other areas of activity which have already been specified by commissioners over the years as being areas in which activity would constitute a breach of discipline by members of the Garda force. When the Fourth Schedule to this Bill was being drafted a decision was made to include in it only conduct which would be likely directly to concern or affect the general public and to leave to the Discipline Regulations conduct which would be more relevant to internal Garda disciplinary procedures. It was considered that prohibitive spare time activity fell into that category and they were therefore not included in the Fourth Schedule.
The conduct that is set out in the Fourth Schedule, I think the Senator will agree — and I think Senator Durcan agrees with this too by implication, at least, from his remarks or by inference from what he did not say — is conduct which in any circumstances would constitute an offence and would not be consistent with the kind of standards that we expect of public servants or indeed people in any position of responsibility. The conduct which Senator Durcan now seeks to have included in the Fourth Schedule is conduct of a different kind. It is conduct which of itself is a perfectly legitimate activity which can be engaged in by citizens generally and which cannot in any circumstances be regarded as being morally or criminally wrong. I know that each one of us has ideas about particular flavours of political activity but there is none of us in this House who would regard political activity in itself as in any way morally wrong. We might regard some manifestations of it as being misguided but not intrinsically wrong.
It is the case that members of the Garda Síochána are precluded from involvement in certain activities; some of them neither morally nor criminally wrong, either because the Commissioner believes that such conduct would be likely to interfere with the proper discharge of their duties or to cause worry or apprehension among the general public in relation to the impartial discharge of the duties of the Garda Síochána.
I should also point out that with the exception of the prohibition on involvement in political activity, which is specifically mentioned in the 1971 Discipline Regulations, all of the other activities which are encompassed by this amendment have been prohibited by the commissioner at his sole discretion. That discretionary power is conferred on him because he is the head of a disciplined force, as I pointed out before. He is the guardian of its good name. He is the person who is in the best position to decide what activities are or are not consistent with membership of the Garda Síochána and I believe that it is important, from a number of points of view, that his position and pre-eminence in relation to those aspects of the conduct of the Garda Síochána be emphasised and maintained.
That is not to say that members of the public cannot complain if they believe that individual members of the Garda force are acting in a way which the Senator would wish specifically to identify in the Fourth Schedule. If a member of the public believes that a member of the Garda Síochána at whatever level is acting in a way that is inconsistent with the line being taken by Senator Durcan with which I think we all agree, he has a perfect right to complain to the Commissioner about it and to have the matter then dealt with under the Garda Discipline Regulations. In my view, for the reasons I have set out, I believe that that is the appropriate way of dealing with the matter.
In one sense the Minister has made the argument for me in relation to (a) and (b) of my amendment, that is dealing purely with political activities by a member of the Garda. I accept the point and the Minister's response in relation to paragraph (c) of the amendment and that perhaps what is mentioned there is more appropriate for inclusion in the Garda Síochána Discipline Regulations. But he did not make the point that there are certain matters which are of a public nature as distinct from an internal Garda nature. I think that the items mentioned at (a) and (b) are certainly matters which can affect the public in a very open way. I believe they have affected the public in a very definite way in the recent past. Activities of this nature by members of the force at lower levels are increasing. It is for that reason that I put down the overall amendment. I would ask the Minister to consider between now and the Report Stage whether an amendment along the lines of the new Article 10 (a) and (b) I have suggested should be included.
Am I right in saying that the Bill as originally circulated would have included a provision of this kind by reason that the regulations were mentioned in the Bill and anything which was in breach of discipline under the regulations was a breach of discipline for the purpose of a complaint. The Minister has quite rightly identified some areas where some breaches of discipline, for example, not being tidy in uniform and such things, are best dealt with in the way the Minister suggests. I have no great objection to the introduction during the Dáil debate on it of a Fourth Schedule which we are now considering. But I think that the question of controlling the extent, if at all, that members of the garda identify publicly with a political party is very important. It is very important that that would be an area where a member of the general public may complain and that the complaint may be dealt with in a public fashion.
In all the cirsumstances the Minister's first thought on this was considerably better than the second thought. The first thought was that exactly this, word for word, would be in the Bill indirectly, but it would have full power of operation, because any breach of the regulations was being made an offence which was capable of being investigated. That included this precise amendment. For that reason and bearing in mind the additional point made by Senator Durcan I think certainly with regard to the question of membership of a political party, it is very much a matter which should be capable of being referred to the complaints procedure.
I do not know to what extent engagement by members of the force in other activities for reward falls foul of paragraph (c) of the appropriate disciplinary regulations, but it is a matter about which complaints are made by members of the general public to each other and to public representatives on a fairly frequent basis. I think that it is reasonable that this kind of complaint about members of the Garda Síochána engaging in what appears to be other full time occupations, should continue to be the subject of public scrutiny, or should become the subject of public scrutiny. For that reason I support the amendment of Senator Durcan.
It is more frequently the case that Senator O'Leary disagrees with the Minister's first thought and it is, therefore, with some sadness that I find Senator O'Leary agrees with the Minister's first thought, but the Minister thinks that second thoughts are better. It is true that the Schedule we are discussing here was inserted in the Bill as a Committee Stage amendment in another place. The reason it was added was partly to simplify the presentation of the Bill and to assist the public by providing an easier reference. Previously conduct which could be subject to a complaint was defined by reference to the disciplinary regulations contained in the Schedule to the 1971 Discipline Regulations. I came to the conclusion, I think correctly, that it would be far more convenient for the public and those acting on their behalf to be able to find the grounds in one place in this Bill, longish and complicated as it is, rather than having to procure a copy of the 1971 Discipline Regulations. The consensus of opinion elsewhere has been that this was a simplification that was well worth bringing about and that is certainly my view.
That is how the Fourth Schedule got into its present form in the Bill. In addition to that, before Senator Durcan leaps to the defence of his amendment, I would have to repeat again that some forms of conduct have been separately specified or identified by commissioners over the years as being forms of conduct that would be regarded as breaches of discipline. It is important that the commissioner be in a position to do that. Who knows but that some new form of conduct might not emerge, indeed over the next 15 years. There are forms of conduct, which, if engaged in by members of the Garda Síochána would properly be regarded as breaches of discipline which did not exist before that. I do not intend to go into all of that, but for example the proliferation of security firms over that period has certainly brought about a new area in which breaches of discipline might be committed by members of the force. In all such areas, and the House is entitled to ask me to give particular attention to this, it should be made very clear to the general public that those kinds of conduct do constitute breaches of discipline and that the proper place to make the complaint is to the Garda Commissioner, so that they can be dealt with under the Garda Discipline Regulations.
It has been my practice for some time, since I found out about it myself, which pre-dates my entry into my present functions, whenever a member of the public has brought a matter of that kind to my notice, to deal with it in that way, or when another public representative has brought a matter of that kind to my attention to tell him or her, that the proper place to make the complaint is to the commissioner. That is the best way of doing it. I attach very considerable importance to emphasising the role of the commissioner as the final curator of the good name of the force, and the chief disciplinary officer of the force. As I said in another connection in relation to this bill, it is very important that that be maintained and be seen very clearly both by the general public and by members of the force itself.
For all of those reasons, I am not disposed to accept the amendment because I think the point and other concerns that I have just developed are adequately covered.
Acting Chairman
Is the amendment withdrawn?
In a spirit of total disagreement I withdraw the amendment
Amendment, by leave, withdrawn.
Fourth Schedule agreed to.
Title agreed to.
Bill reported without amendment.
Acting Chairman
Next Stage?
I rise now as an ordinary Member to say what I heard this morning. Am I not right in saying that the Leader of the House indicated this morning that the Report Stage of this measure would be taken next Wednesday? Is that correct?
It was agreed that the Report Stage would be taken as the third item next Tuesday.
Before the Minister departs we have just got the regulations dealing with the treatment of persons in custody. The Minister could save the Members of the House a great deal of trouble if he could tell them whether there has been any material departure from the proposals.
There have not been major material departures. There are a limited number of changes other than textual changes, a list of which, I will confess to the House, I expected last evening, but which I cannot recall now, after the discussion which we have just had. There are a number of textual changes also including a couple which Senator O'Leary indicated yesterday, but I believe, unless I am very much mistaken, that it is proposed to take those regulations for adoption as regulations within the next few days in the House.
Acting Chairman
Next Wednesday, 9 July 1986?
Yes, next Wednesday.
Would it be possible for the Minister to let us have a note of what the changes are, if they are significant? If they are only just an "of" for an "on", I am not interested in that.
I will do so with alacrity.
Will the Minister send them with pleasure?
I will send copies of the regulations with pleasure, the rest with alacrity.
Report Stage ordered for Tuesday, 8 July 1986.