Amendments Nos. 1, 2, 5, 6, 7 and 8 are similar and may be discussed together.
Garda Síochána (Complaints) Bill, 1985: Report and Final Stages.
I move amendment No. 1:
In page 6, line 23, to delete "as soon as may be" and substitute "as soon as is practicable".
The purpose of this amendment is to change in a number of places in the Bill the expression "as soon as may be" and substitute the expression "as soon as is practicable". First of all, I want to bring to the attention of the House that I do not propose to make the change in every case. There are a number of cases in the Bill where I consider that "as soon as may be" is correct. They refer basically to where something is to be done by the tribunal or by the complaints board. The reason I am drawing a distinction between those actions and the actions of the other people is that they are actions of corporate bodies or of groups of people who contain an element of voluntary service, who contain an outside independent element, which obviously cannot be as disciplined with regard to time, or should not have the same onus put on them with regard to time as people whose professional duty it is to carry out the responsibilities placed on them by the provisions of this Bill when enacted.
For that reason I have identified what I consider to be the appropriate places where "as soon as may be" should be substituted by the phrase "as soon as is practicable." The first such case is on page 6, which Members will be aware refers to section 4. In that case in line 23, it imposes an obligation on the chief executive at subsection (3) (c) where the chief executive is of the opinion that the complaint is admissible, and the board decides the complaint is admissible, the chief executive shall, "as soon as may be", so notify in writing the complainant. That is a very good example of why I consider some fairly strict timetable should be put on people. Here a chief executive is of the opinion that the complaint is admissible. The board have decided that the complaint is admissible. All that requires to be done in order to start the procedure is for the chief executive to notify the complainant and the Commissioner. I do not see anything particularly wrong with that. I do not see any reason that should be delayed. Therefore, it falls on us to consider what is the legal meaning of the expression "as soon as may be".
I have failed to find an accurate or a judicial definition of "as soon as may be." Other expressions were suggested in the course of the Committee Stage debate, phrases such as "without delay", "as soon as possible." I would like to explain briefly why I consider they are not as good as what I suggest.
To do something "without delay", in my opinion, imposes a very strict obligation on somebody to do something almost irrespective of the circumstances. For example, if a delay was caused, in the classic example of sending things to a laboratory for examination in a drunken driving case, if it was interrupted by holidays or something like that, that would mean, if one used the expression "without delay" that one could not postpone the task until after one's holidays. I think the phrase "without delay" has been fairly conclusively held to mean exactly what it says, that a break for something social like holidays, or even for a weekend, might not be an acceptable interpretation. The phrase "as soon as possible" has the same problem attached to it, in that it may be possible to do something but highly inconvenient. For that reason I do not think "as soon as possible" is appropriate. It would impose an obligation on people which would be of a kind which would be unreasonable. That is why, having considered the suggestion of "as soon as possible", I dismissed it.
The phrase "as soon as is practicable" of course, is used in the British regulations. The Minister will be aware of this. I saw the Minister looking last week at the All-England Reports. He is no doubt looking at 1986 I, All-England Reports, Part V, pages 257-320, where in the case of Rex versus the Chief Constable of Merseyside Police and others two matters were considered. It is made clear that, in that case, an obligation was put on the investigating officer to do something “as soon as is practicable”. In that case it was not done for some two years. Hardly surprisingly, it was held that two years were outside what was considered to be reasonable.
Sitting suspended at 12.55 p.m. and resumed at 2 p.m.
The English regulations apparently use the expression "as soon as practicable". I was not aware of that when I decided on it in this connection, but it strengthens my conviction that this is an appropriate expression to use in the circumstances. I refer the Minister to a case in which "as soon as practicable" was referred to. It was decided that a delay of two years in informing the officer concerned of the complaint meant it was not done "as soon as practicable" in all the circumstances.
"As soon as practicable" is different from "as soon as possible" which I have already given my interpretation of, and from "without delay". I maintain that it is also significantly different from "as soon as may be", which is a much more vague concept and a lot less urgent than "as soon as practicable", because the latter puts an obligation on those involved to do things quickly — not to do them immediately, not to do them without delay, but to do them as soon as they can be done taking all circumstances into account. For example, if somebody went on holidays, "as soon as practicable" would cover the circumstances if the person took the action when he came back.
In my view, "as soon as may be" is considerably more vague than that; it seems to me to suggest as soon as a person who has the responsibility considers it appropriate to do so. I look forward to the Minister's explanation of what he thinks the difference is between "as soon as practicable" and "as soon as may be". He must have considered "as soon as practicable" as one of the options and he must have got advice. Obviously, the research facilities available to his advisers would be considerably better than those available to me. Therefore, the Minister might like to say what he considers, and the basis on which he considers it, his definition of "as soon as may be" is and what the appropriate and corresponding definition of "as soon as practicable" is. Having heard that, I will be in a better position to see if in view of that response it would be appropriate for me to withdraw the amendment.
I support the amendment for the reasons stated by Senator O'Leary.
One of the good things about the administration in its broader sense, the public service, is that it is a model of integrity by and large. It operates fairly, and as one who has been critical on many occasions, particularly of the Garda, I wish to say that many gardaí do a very fine job. One of the deficiencies in our public service generally is their capacity for delay which can destroy the public image of an otherwise very well run public service.
That is why I share the sentiments expressed by Senator O'Leary about the need to build into both regulations and legislation the most tightly worded phraseology possible to ensure that there will be a motivation in people, the Garda in this case, to operate with the minimum of delay. Therefore, I worry about clauses written in such a way that people can make their own judgments about the urgency of cases rather than having society tell them that because complaints against the Garda are being investigated, these matters are important. It would be improper of me to suggest that this is a matter of fundamental importance, and it will be interesting to hear the Minister giving a possible legal interpretation of "as soon as may be" and how it falls into the spectrum of phrases to indicate some sense of urgency. Much of the good work done throughout the public service in all areas is badly damaged in the eyes of the public because of unnecessary delays, not brought about by any malice but by a sense of a lack of urgency.
Senator O'Leary pointed out that the English regulations, more properly the British regulations state "as soon as practicable". Accuracy in the use of language is important in cases like this.
I will not limit myself to referring to the British experience. I will go back a little further in our cultural heritage and speak about the parts of it we share with our British friends. Being of Norman stock, I am rather sensitive to it. Part of the difficulty lies in the perception of the word "may". In our use of language the word "may" has an indefinite and conditional flavour. "May" has another meaning and mood in the English language which can be rather imperative not to speak of subjunctive. I go back to the French phrase which would translate "as soon as may be" very accurately — that is where it came from in the first place — which is aussitôt que soit which is the most imperative expression one can have. It is the sense in which it is used here.
Senator O'Leary has pointed out that he has not proposed the replacement which is involved in this amendment in all cases in the Bill where the phrase is used. I would like to remind him of the fact that one of the provisions of the Bill is that the member about whom a complaint is being made must be informed of the complaint "as soon as may be" after he is formally notified of its admissibility. Again, that has the same sense of urgency attaching to it as I would give to it here. The essential meaning is that what is to be done must be done without avoidable or unjustified delay. There are some judicial authorities for saying that the phrase does not mean "as soon as may be" having regard to the person's own convenience or business interests. The phrase is frequently used in statutes in relation to the making of reports. Examples are to be found in section 33 of the Postal and Telecommunications Act, 1983, and section 19 of the National Lottery Bill, 1986. I think we can now call that the National Lottery Act, 1986, after the labours of the Chamber last night.
The Minister should not be provocative.
That is the context in which the expression is used in this Bill. On Committee Stage Senator O'Leary asked for a judicial authority and definition of the phrase. Stroud's Dictionary of English Law does not mention it, nor does Jowitt's Judicial Dictionary. Saunders work on Words and Phrases Legally Defined mentions a case from 1910 where the phrase was used in a mining lease.
Which phrase is that?
"As soon as may be". The Lord Chancellor said:
I think that it is quite impossible to say that when a man covenants in regard to particular mines that he will proceed to open...them ‘as soon as may be' after the date of the demise, that means that he may do so as soon as may be, having regard to his own convenience and to his business interests in working other lands and other mines outside the demised mines altogether. I think that this would be making those words far more pregnant and giving them a far wider meaning then can in any legitimate way be attributed to them.
By the process of counter argument that information shows the urgency which is attached to this phrase. In the same work, Words and Phrases Legally Defined, by Saunders, there is a judicial interpretation of “as soon as practicable” in the case of the Anglo-American Oil Company Limited versus Port of London Authority— 1914 1 KB 14. The following opinion was given:
In my opinion ‘as soon as practicable' means as soon as practicable in the course of navigation, having regard to the facilities of the port, and not as soon as practicable with regard to the convenience of the merchant's business.
I should point out to the House that in the cases with which Senator O'Leary's amendments are concerned the persons who are being obliged to perform a duty "as soon as may be" are not in any sense independent republics. They are not acting without reference to other people. They are subject to close supervision by or on behalf of the complaints board. The investigating officer is subject to the directions of the chief executive who is answerable to the board. An exception concerns the duty imposed on the Commissioner in section 4 (4) to notify the member concerned that a complaint has been made against him, but it has not been suggested that the Commissioner would be likely to delay such a notification in the normal case, but he is authorised by section 4 (5) to postpone notification if he thinks it necessary to do so to preserve or obtain evidence.
I could tediously delay the House by referring to other cases but I will come back to the point I started from. Having examined the matter and having heard Senator O'Leary's arguments and submissions on Committee Stage and having reflected on them in the meantime it is my opinion that the phrase "as soon as may be" faithfully conveys the sense of urgency we want to convey about these matters. It meets the case and for that reason I am not disposed to accept the amendments.
The Minister referred to section 4 (5), and to the responsibility resting on the Commissioner to notify the officer about the complaint. I am glad the Minister raised this point because I was going to do so. Will the Minister give further clarification on the extra authority and responsibility on the Commissioner to postpone notification? A peculiar situation can arise. He has to have very good grounds, otherwise this is the situation I can see developing: undue delay, unnecessary delay and delay which cannot be related to getting final evidence. The Commissioner will find himself in the Ombudsman's dictionary "Guilty of maladministration". Undue delay and unnecessary delay are maladministration. That is why I share the concern of Senator O'Leary and Senator Durcan about delay which is not necessary and about delay which is avoidable. Who will complain about the Commissioner and to whom? There is nothing in the Bill about that. This is not a question of mechanics. I am not a linguistic expert or a lawyer, but I recognise an offence against natural justice when I see it. Undue delay is a very serious matter for the officer who is charged.
A couple of examples will satisfy me. From my experience I cannot understand it. I operated the police complaints board against the RUC in the North. The other question I want to ask is a very big question for the Minister. It is probably an unfair question. Maybe I should have given him notice. Can the Stalker saga be repeated in the Republic under this Bill? Here is a man who has not been charged. He has been suspended. There may be prima facie evidence. I am watching very closely, having been chairman of the police complaints board in the North, to see how they are involved in the independent element of the serious allegations or charges which may be made against Stalker. What I am asking is this——
An Leas-Chathaoirleach
I do not like to interrupt the Senator but we are dealing with the amendments on Report Stage of the Garda Síochána (Complaints) Bill, 1985, and the points you are making could be taken on Fifth Stage. The Minister would then reply. That is in order.
Thank you.
An Leas-Chathaoirleach
I am trying to deal with the amendments and I thought that the Senator was straying away from them a little bit.
I bow to your ruling but I understood that the amendments we were talking about dealt with delay.
An Leas-Chathaoirleach
Once you keep your remarks to the words contained in the amendments that is all right with me. I want to be careful that we do not stray into a wider debate at this point.
If you allow me to speak again on this matter on the Fifth Stage I will bow to your ruling.
Section 4 (3) (c) of the Bill provides as follows:
If the chief executive is of opinion that a complaint is admissible, or the Board decides that a complaint to which paragraph (b) of this subsection applies is admissible, the chief executive shall, as soon as may be, so notify in writing the complainant and the Commissioner and, if the complaint was made, sent or given to the Board, send to the Commissioner a copy of the complaint, or, if the complaint was not in writing, a copy of the record of it.
The phrase "as soon as may be" is one of those which Senator O'Leary wishes to amend. I remind the House of that because it is important in the context of section 4 (5) and indeed section 4 (4). Section 4 (4) reads:
On receipt by the Commissioner of a notification under subsection (3) (c) of this section, he shall, as soon as may be, notify in writing the member concerned that a complaint (the nature of which shall be specified in the notification) has been made against him by a specified person.
Subsection (5) goes on to deal with the question raised specifically by Senator McGonagle and it provides as follows:
It shall be the duty of the Commissioner and of any member (whether authorised under section 1 (2) of this Act or not), on becoming aware of a complaint, to take any lawful measures that appear to him to be necessary or expedient for the purpose of obtaining or preserving evidence of or relating to the conduct complained of and, in a case where the Commissioner proposes to take any such measures, he may postpone notification of the complaint to the member concerned under subsection (4) of this section until the measures have been taken.
That is a very specific and restricted power of discretion to the Commissioner. It applies only in specific cases. It is worth repeating them. Any member has the duty to take any lawful measures that appear to him to be necessary or expedient for the purpose of obtaining or preserving evidence of or relating to the conduct complained of. In a case where the Commissioner proposes to take any such measures he may postpone notification of the complaint to the member concerned under subsection (4) of this section until the measures have been taken, that is measures that appear to be necessary or expedient for the purpose of obtaining or preserving evidence.
That is very specific. It is necessary that that should be the case. It is in nobody's interest, neither of a member of the general public nor of a member of the force, to allow the emergence of a situation where evidence might not be preserved or obtained because of, perhaps, precipitate or injudicious action. The purpose of that subsection is very clearly and very narrowly defined as relating to the concern to make sure that the obtaining of evidence is not in any way compromised by action that might be taken. Those are the only circumstances in which the Commissioner has the right to postpone the notification in the way that is provided for here. That, I would submit to the House, is not a provision that would in any way sanction the kind of delay that emerged in the case to which Senator O'Leary referred a few moments ago.
Concluding on my amendment, it is only fair that I should explain two things to the Minister about the use of language since he criticised my use of it.
No, I did not.
He did. He said he wanted it to be precise. These are English regulations. They refer to the law area of England and Wales and as such they are English regulations. They may or may not also apply to Scotland, which is a different law area completely, but they are English regulations. They relate to England. There is no law area of Britain; that does not exist. That is point No. 1.
Britain, geographically, is defined as England and Wales. Great Britain is defined as England, Wales and Scotland. The United Kingdom is the United Kingdom of Great Britain and Northern Ireland. Whatever the Senator may think about philology, my geography is good.
The second point is that the Minister may not be aware of the procedure for the enactment of legislation but the Bill which was passed in this House last night is not yet an Act because it has not been signed by the President.
Point taken.
The Minister has failed completely to explain to the House the meaning of the expression "as soon as may be". He has said that if it was translated into French it would be very imperative and urgent. If we ever have to interpret it as it is, translated into French, the Minister's view in that regard will be of considerable assistance. In the meantime we must view it as it is in English, "as soon as may be". The Minister may be right. It may be very imperative. It may be very urgent. I do not know. I am not saying that I am definitely right in it by any manner or means. I am saying that the Minister is entering into what appear to me to be uncharted waters. He did not have very convincing arguments, nor indeed did I have any convincing argument. I am not boosting my own arguments. The Minister did not have very convincing arguments as to what the real meaning of "as soon as may be" is. He said it was used in another statute dealing with posts and telecommunications. That may be true, but if it has not been judically interpreted the fact that it has been used in the statue is irrelevant. We do have in police regulations, whether they be English, British or whatever you call them, judicial interpretation of "as soon as practicable" and it seems to fall some way in line with what appears to be the consensus of the House as to the proper approach and the desirable sense of urgency which should be applicable in these matters.
What we do not have in regard to "as soon as may be" is a definition of it. The Minister gave us one example which dated back to about 1911. I am not objecting to the fact that it is that old. I am saying that if it has been judicially interpreted since then it is fairly uncertain what it means and I am surprised in those circumstances that the Minister is satisfied to use it. The difficulty which I had was finding a judicial definition of it. The Minister went through a number of books which just did not have it. He found one which did have it, but the standard textbook did not have it.
To introduce that expression into a situation where we want to be as certain and as positive as possible and to put a reasonable degree of urgency into the process without tying people up in knots, would be a shorthand way of saying what we are trying to achieve. In those circumstances the use of the expression "as soon as may be" is open to interpretative difficulties and is slightly more risky from the point of view of making sure that justice will be done between the parties. That is what we will be seeking to do. It is slightly more risky than the use of the expression "as soon as practicable". That is all I am saying. I am not certain I am right but I am certain that the expression "as soon as may be" is an expression which has not been judicially defined in the reasonable past. For that reason, it is not an expression to which I would feel attracted, in putting obligations on people in an important matter like the complaints procedure as set out herein.
The Minister is mistaken in not accepting my amendment. Of course, I am not sufficiently sure of my grounds to be able to press the amendment to a vote but I put it forward in the expectation that I would extract from the Minister a more comprehensive reply than I had got. In view of the fact that I have not got that comprehensive reply, I can only remain in ignorance as to the true position, an ignorance which is shared both by the Minister and myself. He did not seem to satisfactorily define "as soon as may be". In those circumstances I have no option but to withdraw the amendment, and not because I want to do so.
Amendment, by leave, withdrawn.
Amendment No. 2 not moved.
I move amendment No. 3:
In page 7, to delete lines 42 to 47 and substitute:
"(6).—(1) (a) The Commissioner shall appoint a member of the Garda Síochána (in this Act referred to as an investigating officer) not below the rank of inspector."
Amendment No. 3 is to give the Minister the opportunity of amending the Bill because I knew he was very anxious to do so. Section 6 contains a rather strange provision to which I referred on Committee Stage. The section speaks of instructing or permitting the Commissioner to appoint a member of the Garda Síochána as an investigating officer, a member not below the rank of superintendent or, if he considers the circumstances so warrant, of the rank of inspector. The effect of that, irrespective of what is in the Minister's mind, is that he can at his option appoint anybody from an inspector upwards. That is the reality of the situation and, therefore, why not put it into law? The Minister can have all kinds of internal rules about it if he wants to, that for certain kinds of cases it should be a chief superintendent, but why not put it into law? For that reason I have drafted an amendment with Senator Durcan that is much more straightforward than the proposed subsection.
I second the amendment. The purpose of this amendment as Senator O'Leary said is to give effect to the reality of the section. This issue was raised by Senator Eoin Ryan on Committee Stage and it was discussed at that time. It is unrealistic that the Commissioner should have the two options specified in section 6 (1) (a) (i) and (ii). The section as it stands is meaningless. The Minister gave a reasoning on Committee Stage which I did not find particularly inspiring. The amendment, as drafted, gives effect to the reality and does not in any way diminish the powers of the Commissioner.
As a lay person, I had this impression before I got involved in this House that the purpose of being governed by law was largely to do with people being able to have a precise understanding of what society deemed to be the case in many areas and that the regulations under which society operated were written down to avoid ambiguity and uncertainty. This is the third time in 24 hours in which we have been confronted with phraseology in legislation which is anything but precise and which leaves all sorts of options open to people, and quite unnecessarily so.
I support the amendment but I begin to wonder about what is it that motivates people to draw up legislation in this ambiguous way. We had it yesterday on the regrettable National Lottery Bill; I will not concede that it is an Act until it is finally signed. The National Lottery Bill had at least two paragraphs in it that were gobbledegook. I would not accuse this of being gobbledegook but I would like to know why it is necessary to have two such subordinate clauses in it when, in fact, what it really means is that when the Garda Commissioner thinks it is appropriate he can appoint an inspector and when he thinks it is appropriate he can appoint a superintendent. Why cannot we just say that he can appoint somebody not below the rank of inspector and leave it at that? There must be some overwhelming advice available to the Minister or perhaps this was slipped in and he did not notice. He is hardly going to accept an amendment at this late stage. He will hardly admit that he did not notice; knowing the Minister he probably did notice — before he turns his ire in my direction. I would like to know why we put in things like this which mean something simple but where the complicated phrases attached to them make them sound much more complicated than they actually are.
I wish to support the amendment. Like the movers of the amendment, I find it difficult to understand why it is framed in this way. Perhaps I could ask the Minister to address a question when he is replying to this amendment as to whether there would be any circumstances in which there could be a challenge to the Commissioner considering that the circumstances warranted the appointment of the rank of inspector. Could that be challenged by anybody? If not, why not simply accept the amendment, putting in plain English what is in complicated gobbledegook?
The clarity of the exposition of both the amendment and supporting statements belie the contention that this is gobbledegook. When people are dealing with gobbledegook they find it very difficult to be clear about it but Senators have found it very easy to be clear about this one. I confess to some surprise that the House should be making such a meal of such a very simple and straightforward matter.
Following our discussion on Committee Stage, it is clear that there is not a great deal between us on this issue. The advantage in my view of having the text as it is in the Bill is that it clearly indicates that in the normal course of events the member appointed to investigate a complaint will be a superintendent. There is a value in that, both from the point of view of the general public and also from the point of view of the Garda Síochána, in that it indicates very clearly the importance we attach to the proper investigation of these complaints.
Complaints can take many and varied forms; some of them will be very serious, some of them will be serious and some of them will be trivial. They will cover the whole spectrum. While it is important that we indicate that the norm is that an investigation be carried out by a superintendent, where the Commissioner believes that it is not necessary to do that it can be carried out by an inspector. Could that be challenged? I suppose there may be occasions when people will feel that they have not perhaps been all that well done by, some because they have been investigated by an inspector rather than superintendent and others perhaps vice versa. That is the kind of contention that would arise anyway if people feel upset by the fact that they are being investigated or if they are upset at the way they are being investigated. I do not think that having a provision of this kind in the Bill is going to make any difference to that ground of objection that a person under investigation might bring forward during the investigation.
My view is that the text as it stands gives the Commissioner a clear indication as to what we expect and, equally, a clear indication of the fact that he has some discretion in the matter. That is important. As I said on Committee Stage, we should recognise in this Bill that the Commissioner, notwithstanding the provisions of this Bill, is the chief disciplinary officer of the Garda. It is important that we should make that clear so that, if anything, we buttress his authority as the chief disciplinary officer.
I am grateful to the Senators who contributed, particularly Senator Robinson who emphasised a point which I had forgotten to mention. One of the reasons we like to tidy things up is to reduce the area of potential conflict. This Bill says the Commissioners can do certain things if he considers the circumstances so warrant. Somebody at some stage is going to ask, did he ever think about the situation, did he ever come to a conclusion that the circumstances warranted it before he appointed the inspector, or did he just appoint the inspector as a matter of routine?
I will not push this amendment to a vote, but I think it is sloppy draftmanship which adds another layer of uncertainty in particular circumstances, the uncertainty being whether the Commissioner exercised his discretion to appoint somebody to the rank of inspector properly, or whether he exercised it at all. That is an unnecessary additional complication and it was only in a spirit of trying to remove the complication and to facilitate the process that I proposed my amendment which I now withdraw.
Amendment, by leave, withdrawn.
Amendments Nos. 4 to 8, inclusive, not moved.
An Leas-Chathaoirleach
As Amendments Nos. 10 and 11 are consequential on amendment No. 9, Amendments Nos. 9,10 and 11 may be discussed together.
I move amendment No. 9:
In page 10, line 4, after "Commissioner" to insert "and the chairman of the Board".
My purpose in introducing this amendment is to invite the Minister to explain what inherent superiority one can presume in successive Ministers for Justice over a carefully chosen chairman of an appeals board which would leave to him the final decision about what constitutes a matter which would be liable to affect the security of the State or what constitutes a serious and unjustifiable infringement of the rights of some other person. Why should we take this stand given that a recent Minister for Justice showed very little consideration for peoples rights and privileges particularly in the area of privacy, when he handed out telephone tapping warrants? Why should we hand this power over to a Minister for Justice and presume that that individual would be far more sensitive to all these proprieties than the chairman of an appeals board working under statute?
Second, I want to mention the tendency to expand the concept of the security of the State. On the last amendment the Minister mentioned subversives making unjustifiable claims.
I did not mention subversives.
I must have misheard the Minister but I am very glad he did not. I am relieved because I thought subversives were extending into areas they had not gone into before. Considerable emphasis is being laid on subversives as a breed who, if it were not for the valiant State sitting on them, would have materialised in virtually every square yard of the country and would have taken away all our freedoms. We get the impression of a country on the verge of armed takeover by a revolutionary organisation if it were not for the security of the State being protected. That is not to make little of the efforts being made to deal with armed subversion. It is the suggestion of the scale of it and the threat it poses that some of us are concerned about. After the recent referendum anybody who thinks Irish society is on the brink of revolutionary change would have a lot of arguing to do.
One has to wonder how a section like this which will be internal to the apparatus of security within the State, will be operated. On Committee Stage when I suggested that the board would not be involved in assessing this matter the Minister said I was incorrect because the investigating officer would be acting on behalf of the board. The investigating officer, with possible rare exceptions, will be, a member of the Garda Síochána. I am sure he will do his job with integrity and with thoroughness, but he will still have a view of what constitutes a threat to the security of the State which will be coloured by his training, experience and the guidelines issued by his superiors and, ultimately, by the Garda Commissioner.
I am most concerned about the way people are arrested under the Offences Against the State Act. It was in the Trimbole case that a judge in the High Court, confirmed by the Supreme Court, brought some limitations on the capacity of the Garda to arrest people under that Act. I had the delightful pleasure of being followed home by plain clothes members of the Garda not so many years ago with my flat being kept under observation until the early hours of the morning — looking back it was quite funny but at the time it was quite unnerving — and I am not prepared to dismiss the possibility of being arrested under the Offences Against the State Act. The Garda must have had some reason to follow me. I cannot understand why, being, if anything, the most romantic pacifist in the House. Perhaps it is the power of my ideas that is so subversive.
What about the beard?
I could tell a story about that too — the risks you take particularly travelling north of the Border because the British army take a great interest in people with beards.
An Leas-Cathaoirleach
I do not want your life story. Will you get back to the Bill, please?
I am very disappointed because I thought you were very interested in my life story.
Nearly 2,000 people are arrested every year under the Offences Against the State Act. As long as the identification of the security of the State and the final arbitration as to whether a certain matter is a threat to the security of the State are retained within the apparatus which is responsible for looking after the security of the State, a large number of people who are arrested and searched under the Offences Against the State Act will have considerable difficulty in getting a proper hearing of their complaint. One could argue whether everything in a report by the investigating officer should be made public in the broadest sense but one could not argue that all these matters should be excluded.
What I have suggested is that an independent element of assessment should be built into decisions of this nature. The first stage should be that the officers would report to the chairman and the Commissioner, and they should endeavour to reach an agreed position on it. I would assume that in 99.9 per cent of cases that would be quite feasible. Given that the chairman of the board will be an eminent member of the Irish establishment, he or she and the Garda Commissioner will take, I suspect, very similar views on these matters. It would be at least an active role for the board in determining these matters. If that failed then the board should decide on these matters. I do not understand why we have to do it differently.
There is an apparent reluctance within certain areas of the apparatus responsible for the security of the State to believe that anybody except themselves understands or cares about the problems of society in the areas of crime and subversion, and is prepared to do something about them. We have this often self-made imagery, particularly coming from the Department of Justice, of a bastion of security defending the rest of us innocents from an overwhelming wave of terror and subversion that would sweep us all away if we really understood or were allowed to know what was going on.
The best protection for the security of the State is the freely given support of the citizens of the State for the protection of the security of the State. To have people give freely their support to whatever measures are necessary they need to have the information on which those measures are based. Therefore, to retain all decisions on what constitutes information which might threaten the security of the State entirely within the apparatus of the security system will undermine that public confidence. As matters stand a large area of what I consider to be legitimate concern about the operations of the Garda in the use of the Offences Against the State Act will not be properly or thoroughly investigated, and hence I move the amendment.
I second the amendment. One central point in what Senator Ryan has said and on which he is entitled to an explanation was not properly addressed on Committee Stage.
Are complaints with regard to the treatment of persons arrested under the Offences Against the State Act going to be rendered not capable of being investigated by this system of the restriction? What will happen where a member of the force who, acting under the opinions he has formed which are necessary under the Offences Against the State Act, decides that somebody should be arrested and that simultaneously, for example, that that is a possible cause for complaint? I am not talking about a person who might be ill-treated, but a person being improperly or wrongly arrested. The Minister will be aware that paragraph 4 of the Fourth Schedule makes it a disciplinary matter, in so far as this complaints procedure is concerned, to arrest a person without good and sufficient cause. Some persons arrested under the Offences Against the State Act if they are not subsequently charged are going to feel that they have a genuine complaint — they may not have a genuine complaint — that there was not good and sufficient cause for making the arrest. Is the Bill as enacted going to give an automatic out to any member of the force who has so arrested a person under the Offences Against the State Act? It is not going to give an automatic out, will the Minister explain why? I am talking only about a person arrested under the Offences Against the State Act, held for a while and not charged. If that person says that he was arrested without good and sufficient cause will he get redress under this complaints procedure, or will the provisions in page 10 mean that the investigation of complaints envisaged in section 6 will be frustrated by an investigating officer almost automatically forming the opinion that because somebody was arrested under the Offences Against the State Act, the reason that person was arrested, based as it may be on information supplied to an officer, cannot be included in the report as it would be liable to affect the security of the State or constitute a serious and justifiable infringement of the rights of another person? Senator Ryan's point should be considered by the House and for that reason I second the amendment.
The point has been very well made both by Senator Ryan and Senator O'Leary in support. I share their concern about the implications for persons arrested under section 30 of the Offences Against the State Act who subsequently, for whatever reason, wish to lodge a complaint and what may ensue from that. I hope that the Minister will develop the implications fully. I support this amendment because it takes it out of the potential political arena entirely and does not provide a role for the Minister for Justice in an area where there does not seem good ground for that role to be exercised by a political figure. It is better for the system. It secures the authority and acceptability of the whole complaints machinery that there is not the possibility of reference in such circumstances to the Minister for Justice or the role for the Minister as has been described. I await with interest the Minister's reply to this amendment.
I assure the House that it is not out of politeness to Senator Robinson that I will begin with her last remark.
Frankly, I am very upset that, a Member of this House could say, as calmly as Senator Robinson did, that there should be no role for a political figure in this matter. That is an abdication of politics and I do not accept it.
What about the DPP?
These are areas which, apart from other considerations, are concerned with the security of the State and I cannot accept, nor will I, that the security of the State or anything to do with it should be an area where there is no role for those who are elected by the people of the State to represent them. I reject the logic of that argument from the beginning, particularly bearing in mind that if the citizens of the State do not like the way their elected representatives are carrying out their jobs they can fire them and they get the opportunity of doing so at least once every five years and recently rather more often than that. It has become too much of a habit. There are other people who have functions in this matter who cannot be dismissed by the general body of the populace even if they have a mind to.
I now want to take up some of the points made by Senator Brendan Ryan. I do not claim, nor would I ever, any inherent superiority for any Minister for Justice, the present one included, over the chairman of an appeals board, but that is not what is in question here. Senator Brendan Ryan is exaggerating more than a little in his remarks about the expansion of the concept of the security of the State. Again, he is exaggerating more than a little in seeing dangers in the influence that an investigating officer's training, instructions or experience might have on the view that he takes of the security of the State. In fact, I find it perverse to say that the experience, training and instruction of an investigating officer should not be brought to bear in assessing whether there is an implication for the security of the State. You do not train people to do a particular job and then say because the security of the State may be involved here you will not let them do the job because their experience might colour their thinking. Most of the time we like investigators and police officers to use and build on the experience they have rather than reject it.
Senator Brendan Ryan criticised the provisions in the Bill on the basis of his view that it is wrong that the definition of the security of the State should be reserved to the apparatus designed to protect that security. I am not quite sure what point the Senator was making. I agree with what I think I detected in his closing remarks, that we are all part of the apparatus designed to protect the security of the State. I do not see anything wrong with acknowledging and providing for the exercise of a responsibility that we vest in certain people involved in the adminstration of our judicial and legal system and who are involved ex officio in protecting the security of the State. It would be totally wrong to provide that the Minister for Justice should have no role in that because it is part of his responsibility, given to him and confirmed by the seal of office the President hands to him. It is part of the responsibility of the security forces to protect and uphold the security of the State. It is not part of our job to say those people on whom that charge is placed should not be involved in making decisions that arise out of our concern for the security of the State.
With regard to the position of people arrested under the Offences Against the State Act, it has always been the case that, if a person believes he or she has been wrongfully arrested under whatever Act is invoked to justify the arrest, that person may have a means of redress provided for in law. We now have a new, clearer procedure under which people can make complaints, which I hope will be effective. That redress will also be open to a person arrested under the Offences Against the State Act if that person believes he or she should not have been arrested.
Section 6 (8), which it is proposed to amend, is designed to bring about an accommodation, a balance between two conflicting interests. On the one hand we have the need to ensure that a complaint is thoroughly investigated and that all the relevant facts are placed before the complaints board so that they can arrive at a proper decision and, on the other hand, we have the concern to prevent the disclosure of information that would be liable to affect either the security or the State or, something which was not referred to in the remarks made so far apart from those made by Senator O'Leary, to infringe on the rights of some other person in a serious and unjustifiable way.
Senator Brendan Ryan goes in the direction that I have just set out, but I do not think the result of his amendment would be as effective as the provision in the Bill. We are trying to protect two kinds of information here, security information and information from confidential sources, subversive or not. Both those categories are already protected from unauthorised disclosure by the Official Secrets Act, 1963, and the power to authorise disclosure is vested only in Ministers. A distinction is made in the penalties applicable to the disclosure of subversive and non-subversive crimes. Very severe penalties are provided for in the case of the disclosure of security information and the disclosure of other official information is a summary offence. There is a distinction, therefore, already between those two areas and the Bill follows that pattern. Only Ministers can authorise disclosure of information under the Official Secrets Act. In the provision written into the Bill the Minister for Justice ultimately decides on whether the kind of sensitive information we are talking about would be disclosed to the board and to what extent. Before that, of course, the investigating officer and the Commissioner must be satisfied that the information should not be disclosed.
If the investigating officer alone or the investigating officer and the Commissioner together do not form the opinion that there is a problem about the disclosure of information, the Minister for Justice has no function. Each of the three people involved — the investigating officer, the Commissioner and the Minister for Justice — when they come to make a decision as provided for in the Bill will make it in the knowledge that the fact that that decision has been made will be stated explicitly in the report. In each case there will be pressure on them to ensure that there are good reasons for making that decision.
Senator Brendan Ryan proposes that the chairman of the board should be substituted for the Minister and have the power to make inquiries he believes are necessary before deciding on whether he should adopt the opinion of the investigating officer and the Commissioner. He proposes further that, in the event of disagreement between the chairman and the others, the matter should be decided by the board. I do not think that is a proper way to deal with a matter which could affect the security of the State or put another person's life at risk. It would give the board a right to insist on disclosure of information which, on grounds of public policy, even the courts cannot require to be disclosed. There is ample documentation in regard to that point. In addition to that, it would allow the board under section 12 of the Bill to authorise the chairman to disclose to the ordinary members or to the complainants any confidential information the chairman had obtained in the course of his inquiries.
When one puts all that together it produces a most unsatisfactory situation for the sources of the information, perhaps for the security of the State and certainly for the Minister for Justice who, under Senator Ryan's proposal, would have no hand, act or part in the operation even though among the members of the Government he is probably the one, apart from the Taoiseach, who is most specifically charged with defending both the security of the State and the rights of individuals not to be put in danger as a result of matters over which they have no control.
Looking at it from those angles I conclude that the system set out in the Bill best accommodates all the different requirements without in any way running the risk of unnecessary, unjustified oppression on people of the kind Senator Ryan seems to fear. For that reason I am not disposed to accept this amendment.
I will not say I am astonished that the Minister is not accepting my amendment. To some extent he contradicts himself by explaining at length to us why it is necessary for the Minister for Justice to be involved and then explaining to us how paragraph (d) can be used to effectively omit the Minister from the procedure. I must take a moment to get myself organised.
That is most unlikely.
I must appeal for the Chair's protection against Senator Honan. That is a most unfair remark. Paragraph (d) reads:
Nothing in this subsection shall prevent the making of arrangements between the Board and the Commissioner whereby, in a particular case or more general by a matter referred to in paragraph (9) of this subsection may be dealt with by some other procedure.
The Minister explained at length why the Minister had to be involved and then, under paragraph (d), is quite prepared to accept an arrangement where the Commissioner and the board work out some arrangement where the Minister is not involved. If the involvement of the Minister is a matter of principle we should not have paragraph (d). If the matter of involvement of the Minister is not a matter of principle then we should have put in something else. I would be interested in those areas where the courts do not have any right to publish documents particularly in the area of security of the State. I do not suppose the Minister can go into that now, though I know it is possible to claim privilege. I do not know that the courts are actually precluded from publishing documents if they deem it to be necessary in the interests of justice. I know that the Executive has made attempts in the past to insist that the courts do not have the right of access to certain documentation. I do not know that the courts have ever conceded that right to the Executive. Our courts have a good record in insisting that on all matters, including the question of the security of the State and things like that, the courts take the final decision. I am simply drawing a parallel with what I understand to be the attitude of the courts in the area of the operation of the complaints board, that it should not be the Executive which takes these decisions. I did not suggest that in some broadly based way the definition of the security of the State should be taken away from the people who are responsible for the security of the State. I said, in the context of the subsection of this Bill dealing with complaints against a section of the security forces, it should not be left to the security forces or their political master to define what constitutes the security of the State.
What are political masters for?
If we could go back to Committee Stage, we could have a dialogue. Otherwise I do not think the Minister should ask me questions like that. I have a detailed view of what political masters are for and it is quite different from accepting Garda advice about what constitutes the security of the State in some sort of unqualified way which is not open to independent assessment. I happen to believe that one of the values we have in this country is that the courts finally determine what is legal and what is not legal in this country.
This does not prejudice the courts.
Of course it does not prejudice the courts but the Minister's implying somehow that to give a similar power to the appeal board to that which the courts currently have would somehow undermine the position of the Minister for Justice. I do not see how it would. I think it would strengthen the Minister's position because the suggestion of political interference in difficult areas would not so easily surface.
Having been the author of a considerable number of complaints about misuses of the Offences Against the State Act, where I was satisfied that from my own knowledge that the security of the State was in no way at risk, I do not believe that there is any current willingness to treat such complaints seriously. The best one ever gets is a three line reply either from the investigating officer or the Garda officer who investigates the complaint or in some cases from the Minister for Justice saying that he or she is satisfied that the matter was carried out in accordance with the law. If that is the level of accountability that is going to continue for complaints under the Offences Against the State Act we will get nowhere. I have experience of people being questioned under the Offences Against the State Act where Senator Brendan Ryan's political views seemed to be more important than offences under the Offences Against the State Act and where people's activities in campaigns against the Criminal Justice Bill and the so-called pro-life amendment seemed to be of more concern than people's activities or scheduled offences under the Offences Against the State Act. I think the Offences Against the State Act can be used as a convenient way of checking up on what people who are suspected of being involved in subversion are doing in other areas.
I regret that the Minister will not accept the amendment. I am confused as to how he can on the one hand make it an issue of principle and then tell us that under paragraph (d) if the Commissioner and the board agree on the different procedure he is quite happy with it. I can just assume and hope that since he sees this as an acceptable procedure he will do his best to encourage the Garda Commissioner to agree to implement some sort of an arrangement which would be a far more acceptable method of operation.
Amendment put and declared lost.
Amendments Nos. 10 and 11 not moved.
Bill received for Final Consideration and passed.