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Seanad Éireann debate -
Friday, 10 Dec 2004

Vol. 178 No. 26

Garda Síochána Bill 2004: Committee Stage (Resumed).

Debate resumed on amendment No. 82:
In page 37, between lines 32 and 33, to insert the following new subsection:
"(3) Information shall not be deemed to be of harmful effect it if can be shown that its disclosure was inadvertent or procured through fraud or deceit.".
—(Minister for Justice, Equality and Law Reform.)

I do not know what more I can say on the subject. The Bill has been extensively revised and rebalanced in terms of the heads put out for public consultation. As I said yesterday, the Official Secrets Act inhibits public servants from divulging virtually any information and, as far as I am aware, the Department of Justice, Equality and Law Reform is a remarkably leakproof institution. I am grateful to my officials for their constant vigilance in upholding the highest standards of confidentiality in that Department.

A fairly lurid headline in today's newspapers arose from remarks I made yesterday to the effect that I may not be able, given the rush of legislation, to review the Official Secrets Act. In that regard, I appear to be capitulating on the programme for Government. The article stated that "all targets may not be met", a sweeping statement in the context of what I had to say. If it makes people happier, I will redouble my efforts to have officials review the Official Secrets Act. It is hoped, given the substantial legislative programme before us, we will be able to deal with that issue. It is important to point out that 25 items of legislation have passed through the Department of Justice, Equality and Law Reform within the past two and a half years. The volume of legislation dealt with has been phenomenal and I am grateful to my officials for their effort in that regard.

Most of them were dealt with this week.

I was fascinated by the statement in today's newspapers that "all targets may not be met". That is not the case. Targets will be met. If the question is whether I am certain all legislation will be completed to the nth degree in the remaining two and a half years of this Government's term in office, that is a challenging agenda. I am trying to be honest and suggest that the sooner we get on with our legislative task, the better.

The Bill before us is important and I am grateful to Members of this House for ensuring it is dealt with before the Christmas recess.

Amendment, by leave, withdrawn.
Amendment No. 83 not moved.

Amendment No. 85 is an alternative to amendment No. 84. Amendments Nos. 86, 87 and 105 are related and may be taken together by agreement.

Government amendment No. 84:
In page 37, subsection (4), to delete lines 40 to 47 and substitute:
"(a) is made to—”.

Amendment No. 84 seeks to tidy up the particular subsection following consultation with the Parliamentary Counsel. The purpose of the amendment is to delete the existing subsection (a) in paragraph (1) and provides that subsection (1) does not prohibit a person from disclosing information referred to in that section if the disclosure is made to the persons or bodies set out in the following subparagraphs. A new version of the provisions of the deleted paragraph (1) is included as a new subsection, the purpose of amendment No. 88 which we will deal with later.

I will not accept amendment No. 85. The Bill provides a mechanism for the disclosure to certain prescribed persons including Members of the Oireachtas. Accordingly, on any reasonable review of the situation adequate provision already exists for a concerned person to bring something to notice in a responsible and appropriate manner. Amendment No. 85 would facilitate unauthorised disclosures where a person was of the opinion that the matter was within the public interest requirement without a proper test of balance or reasonableness being applied. We cannot have only a subjective view on this matter, an objective standard must be applied. The Bill as drafted supports the objective view.

Amendment No. 86 inserts a reference to the new Garda inspectorate or an office of the inspectorate. That addition is necessary in view of later provisions dealing with the establishment of the inspectorate. I propose to accept amendments Nos. 87 and 105 in the names of the Labour Party Senators and am grateful they tabled them.

I appreciate the Minister's acceptance of these Labour Party amendments.

Amendment agreed to.

I move amendment No. 85:

In page 37 subsection (4)(a), between lines 43 and 44 to insert the following:

"(i) the public where such disclosure is a matter of exceptional and overriding public interest in all the circumstances,".

There may be exceptional circumstances where it would be legitimate for a member of the Garda Síochána to bring a wrongdoing to the attention of the public via the media. The Minister has said that the provision regarding Members of the Oireachtas would be sufficient for such a situation. However, what if Members in such a scenario did not want to pursue such a matter? Limits are imposed on who could bring this information into the public light. If none of the 226 Members wished to go the distance, this amendment would provide for a member of the force to place the information into the public domain. Our amendment does, however, state that this could only happen in exceptional circumstances.

The problem is who would judge there are exceptional and overriding public interests in all the circumstances. If the right to invoke that defence is given to individuals, would it be an objective or subjective test? For example, a person may strongly believe that paedophiles should be exposed and may come across a particular case which he or she considered most horrific. The person could then give the file to a newspaper. That is not the appropriate way to deal with such a problem. With 166 Deputies and 60 Senators, the chances of a compelling matter of public interest not being disclosed is extremely remote. Members of both Houses are traditionally vigilant. If pressed with any credible information on a matter which should be brought into the public domain, the chances of them turning it down are small. There are also other persons and bodies to whom such information can be brought. There would have to a massive conspiracy by everyone in public life to suppress such a matter. In these circumstances, providing such a flexible route in allowing a member of the force to disclose a matter of overriding public interest is not justified.

Amendment, by leave, withdrawn.
Government amendment No. 86:
In page 38, subsection (4), between lines 8 and 9, to insert the following subparagraph:
"(ix) the Garda Síochána Inspectorate or an officer of the Inspectorate,".

I have already spoken on this amendment and commend it to the House.

Amendment agreed to.

Amendment No. 87 tabled by the Labour Party has also been tabled by the Minister.

Government amendment No. 87:
In page 38, subsection (4)(a)(x), line 11, to delete “necessary for” and substitute “relevant to”.
Amendment agreed to.
Government amendment No. 88:
In page 38, subsection (4), between lines 15 and 16, to insert the following subparagraph:
"(d) is made in the course of, and in accordance with, the duties of that person’s office or employment or his or her duties under a contract or other arrangement to work with or for the Garda Síochána,”.

This amendment arises from the acceptance of a previous amendment. It is necessary to restate the provisions of the former section (55)(4)(a), deleted by virtue of amendment No. 84. It provides for a case where a statement is made in the course of, and in accordance with, the duties of that person’s office or employment or his or her duties under a contract or other arrangement to work with or for the Garda Síochána.

Amendment agreed to.
Government amendment No. 89:
In page 38, between lines 36 and 37, to insert the following subsection:
"(8) In this section 'personal information' has the meaning given to it by section 2(1) of the Freedom of Information Act 1997 and includes personal information relating to a deceased individual.".

This amendment provides for personal information in the section to have the meaning given to it by section (2)(1) of the Freedom of Information Act 1997 and to include personal information relating to a deceased individual.

Amendment agreed to.

I move amendment No. 90:

In page 38, between lines 36 and 37, to insert the following subsection:

"(8) Where an order under section 2 in respect of the commencement of this section is proposed to be made, a draft of the order, shall be laid before each House of the Oireachtas and the order shall not be made until a resolution approving of the draft has been passed by each such House.”.

This is a fallback position because other amendments have not been accepted. The amendment proposes that when section 55 commences, the order must come before and be affirmed by a positive resolution of each House of the Oireachtas.

It has always been the intention that this section will come into effect in the ordinary way, as with the rest of the Bill, in accordance with the making of a commencement order by the Minister under the provisions of section (2)(1). Notice of the making of that order will be published in Iris Oifigiúil. It is not usual for a commencement order to be dependent on a prior resolution of both Houses. The commencement is delegated conventionally to the Minister. Great uncertainty would be caused if a conditional commencement were later rejected by one of the Houses.

Amendment, by leave, withdrawn.
Section 55, as amended, agreed to.
Sections 56 and 57 agreed to.

Amendment No. 92 is an alternative to amendment No. 91 and the amendments will be discussed together.

I move amendment No. 91:

In page 39, subsection (1), lines 10 and 11, to delete "3 members, all of whom are" and substitute "one member who is".

Why has there been a departure from the good precedent set by the Northern Ireland Police Ombudsman? There is only one holder of that office, which has proved highly effective. It is probably too effective from the Minister's perspective in that he is proposing three appointments. The Minister will set out a list of reasons the commission should only comprise three individuals instead of one. Having examined the experience in Northern Ireland, the Minister's proposal will dilute the proposed office, rendering it less strident in discharging its functions and, consequently, less effective.

Our amendment has the same intention as Senator Cummins's. There should be one key person in the ombudsman commission with a similar role to the Northern Ireland Police Ombudsman. There are many reasons for that. It would be useful for the profile of the office of the ombudsman commission if people had one person they could identify with it and have confidence in. It works very well in the cases of the Ombudsman and the Information Commissioner. We hope the Minister will accept our amendment with this purpose in mind.

I have considered carefully whether there should be one, two or three members of the commission. It is desirable that there should be more than one. This will not be a disadvantage to the commission or reduce its status and effectiveness. Providing for three members increases the chance that an internal debate will take place before any decision is made, which is in itself a good thing. The commission is thus likely to act deliberately and to have thought through carefully the consequences of its actions.

I am not critical of the arrangements in Northern Ireland, where there is a single ombudsman, Ms Nuala O'Loan. I have no doubt that she carries out her work in a very effective manner. The Republic is a larger country and the load Senator Tuffy proposes to place on one person's shoulders could be enormous in this community. It is reasonable to share the load among three people. Senator Cummins used the word "strident" in this context. I do not consider stridency to be a characteristic of Ms O'Loan or one we should seek in a commissioner. We need a cool, calm, deliberate commissioner rather than a person who is strident. I do not want stridency to be the hallmark of the commission's activities here.

I do not agree with the amendments, the flaws of which the Minister has pointed out very well. It is not correct to compare the Commissioner to an ombudsman who deals with complaints about particular entitlements as the circumstances in this instance are quite different. As very serious allegations could be made against members of the force with effects on their careers and families, it is preferable that they would be judged by three people rather than one person. Far safer guidelines are being laid down than those proposed in the Opposition amendments. I fully agree with the Minister.

I am open to being convinced by the Minister that three commissioners would be better than one, but wonder about decisiveness in that context. If two commissioners were strongly to hold polar opinions on a matter and the third could not make up his or her mind and abstained, it might not be possible for a decision to be reached. While the Minister feels three commissioners would be better than one, I continue to have reservations. If the three can come to proper decisions, that will accord with what we all want.

I am concerned about public perception of the commission. Where people can identify one person with an office, they are much more aware of its profile. People know who is the Minister for Justice, Equality and Law Reform and expect certain things of him. To appoint one person only would be very positive from the perspective of the commission's profile. While I am very happy the Minister is establishing an ombudsman commission, its operation as a three-person body should be reviewed down the line. The public likes to feel there is one person they can hold ultimately accountable. While the Supreme Court is a very different body, it is one with whose individual members people are generally not familiar beyond those involved in the legal system. Where an office is identified with one person, it is easy to understand its role. If the Minister will not reconsider the matter now, perhaps he will do so after the commencement of the operation of the commission.

I agree with the Minister and the old adage that three heads are better than one. A permanent chairman should not be appointed as three people will bring to the commission their individual talents. While it might be useful to appoint a chairman when considering particular cases in respect of which he or she has more experience than the other members of the commission, it is best to operate in general on a three-person basis.

We are sometimes inclined to think that because the Patten commission suggested a course of action in Northern Ireland, we should adopt it in the Republic. We should consider similar jurisdictions to ours. The police complaints commission for England and Wales and the public complaints commission for the Royal Canadian Mounted Police each have more than one member. If one looks around the world, one sees it is not necessarily the case that only one ombudsman can be appointed. I prefer the idea of appointing three members to the commission.

While I suppose I agree with Senator Tuffy that a single appointee would become more identified with the job, I am not sure it would be a wonderful advantage. A person's attributes come into focus in such cases. If a male appointee wore a particular shirt and tie combination one day, it might be asked if a flashy dresser was the kind of man we wanted in the job. If he were to drink in a certain place, would it be asked if the act had implications in the context of the identity of the commission. It is better to depersonalise the commission. That is one of the advantages of the Supreme Court. People do not ask which members of the Supreme Court hand down particular judgments. Such judgments are deemed to be handed down by the court. We do not ask who are the Revenue Commissioners. We know very well what they do to us and do not contend it would be great if there were only one whom we could identify and love dearly. The appointment of a number of members to a commission is preferable. It is not unprecedented internationally.

Amendment, by leave, withdrawn.
Amendment No. 92 not moved.

I move amendment No. 93:

In page 39, lines 15 and 16, to delete subsection (2), and substitute the following subsection:

"(2) Where the Ombudsman office is vacant or becomes vacant, applications to fill the vacancy shall be——

(a) advertised within and outside the State,

(b) encouraged from persons outside the State.”.

It is would enhance the independence and standing of the commission if competition for vacancies was open to persons outside the State. A person eminently suited to a position on the commission might not be from the State.

It is in vogue to advertise all important jobs and see if applicants put forward their names. In this era of transparency that is frequently cited as desirable but I have noted that it has a counter effect which is not often recognised or spoken about, namely, that some people would be willing, if asked by the Government to become one of the members of this commission, to consider it if they were approached. However, they are not willing to put their name forward in some kind of open competition where their willingness, and the fact that they have been overlooked or rejected as a candidate, will be a downside to the whole process. That is an important point.

In respect of the Judicial Appointments Advisory Board, if we had an advertised competition and invited people to put their names forward, those who are rejected as candidates for the Bench — I will not use the word "humiliated"— would have a negative perception of what had happened. If, on the other hand, we create a secret applications procedure as exists in regard to the Judicial Appointments Advisory Board, people will then say they do not know how the institution works, how a particular name came up or the reason it was done in a certain way.

It is important that these nominations will be persons appointed by the President. The persons in question will be the subject of resolutions of both Dáil Éireann and Seanad Éireann recommending the appointment. That surely is enough transparency. It will not be the case that people who are substandard will be put forward because their qualifications will be scrutinised and it will be a very formal arrangement. It will not be something one will learn about in Iris Oifigiúil one day. The two Houses will have to carefully consider any proposal for appointment to this body. In that regard it will be similar to the appointment of the Ombudsman. The Ombudsman is appointed by the President on the recommendation of the Houses of the Oireachtas. The only difference in this case is that the Government gets a formal role of nomination but that nomination has to be approved by both Houses of the Oireachtas in a public forum where, if an unsuitable appointment was being made, it would be apparent to everyone.

Amendment, by leave, withdrawn.
Question proposed: "That section 58 stand part of the Bill."

Will the Minister examine the qualifications regarding membership. Section 58(6)(a) states: “A person is not eligible to be nominated or appointed under this section if he or she is entitled under the standing orders of either House of the Oireachtas to sit in that House.” Will the Minister elaborate on that? Unless somebody is a convicted criminal, he or she can sit in these Houses. Everyone eligible to be appointed an ombudsman should be eligible to sit in these Houses if they are of good standing in the community. The section states: “ ... is entitled under the standing orders of either House of the Oireachtas to sit in that House.” Does that mean to be elected to that House, a candidate for this House or a former Member of this House? We need clarification on that issue.

The section also excludes a member of a local authority. Elected members of local authorities are in a difficult position in that if they are elected to a body they could be compromised if they have to make a decision on a particular complaint. It also excludes a member of the Garda Síochána. There is no such debarring order for a Minister for Justice, Equality and Law Reform being a former member of the Garda Síochána so why would they be deemed ineligible for this job when the Minister could have been a serving member of long standing of the Garda Síochána? There has been experience of that in this House, as the Minister is aware.

I will not comment on that last point but I am grateful to Senator Leyden for reminding us about it. I was reading a 1923 edition of An Cosantóir, the Defences Forces journal, of which I came into possession. It was a very interesting volume which came out every week in those days. There is an election news section and it recorded the fact that the Commander in Chief of the forces had just secured election with over 20,000 votes. That indicates that our views of separation of powers were quite different in those days than they are now. Of course, that was before the Curragh mutiny and it was a different era. It was interesting that membership of these Houses was open to many people and double jobbing was the practice. We are very sensitive about the dual mandate now yet it was not considered inconsistent then to be Commander in Chief of the Defences Forces and a Member of the Oireachtas. I suppose in an emerging democracy that was considered appropriate in the short term.

I do not know why the section does not read "is a Member of either House" rather than "is entitled under the standing orders of either House of the Oireachtas to sit in that House". Clearly, nobody is entitled to sit in Seanad Éireann under Standing Orders unless he or she has been elected or nominated to it. I will examine whether it can be simplified to refer to a Member of the Houses of the Oireachtas or someone who has been elected to the Houses. It may be that is a standard form which the Parliamentary Counsel has used to include people who have just been elected. I do not know precisely how that would read. We will look at it but "is a member of a local authority" is very clear and I do not understand why we cannot have such clear language in regard to the Oireachtas. I will consider the matter between now and Report Stage.

On the question of former membership of the Garda Síochána, as far as I am concerned that is a red line issue. I want the public to know that this commission is wholly separate.

We accept that but the Minister for Justice, Equality and Law Reform is not ineligible.

Perhaps the reasoning behind it is that if someone runs for European or local elections it will not contaminate his or her role on the ombudsman commission. I do not mean contaminate in the normal sense of the word but the idea appears to be that because the European and local authority elections are more remote, so to speak, they will not damage their role. I am not saying I agree with that. I have the same problem with it as Senator Leyden.

Question put and agreed to.
Section 59 agreed to.

I move amendment No. 94:

In page 40, subsection (2), between lines 34 and 35 to insert the following paragraph:

"(d) to prosecute summarily members of the Garda Síochána where it decides to do so,”.

The ombudsman commission should have an independent power of prosecution and should not be dependent on referring all criminal matters to the Director of Public Prosecutions. Otherwise, its effectiveness will be undermined as has been the case with the Garda Síochána Complaints Board. I understand the Minister intends to refer to the section which allows the commission make a complaint to the Garda or the Director of Public Prosecutions but making a complaint to the Garda would undermine the independence of the commission. They can go to the Director of Public Prosecutions. However, they should have the independent power to pursue their own prosecutions.

The policy underlying this provision is that all decisions relating to procedures following investigation by the ombudsman commission into complaints made against members of the Garda Síochána which appear to involve offences will be a matter for the Director of Public Prosecutions. Section 60(2)(d) requires the commission “in appropriate cases, to report the results of its investigations under Part 4 to the Garda Commissioner or to the Director of Public Prosecutions and, if it reports to the Director, to send him or her a copy of each investigation file”. A short-circuit therefore exists in that one can send the file to the DPP.

Section 93 deals with the procedure to be followed after completion of the investigation by the ombudsman commission into a complaint which appears to involve an offence. Subsection (3) requires the DPP to inform the ombudsman commission about a decision by him "whether or not to institute a prosecution in relation to the conduct that is the subject of a report received from the Commission...". Therefore, there is feedback to the commission from the DPP. Should the DPP decide to institute a proceeding he or she is further required to keep the ombudsman commission informed of the progress of the prosecution and whether it results in conviction or acquittal of the member.

It is clear that in the context of a criminal proceeding the role of the ombudsman commission is purely investigatory in nature. I am not prepared to deviate from this. Indeed, it would be wrong for the commission to have a prosecution role in addition to its investigatory role in establishing facts. We are taking away from investigating gardaí the general right to prosecute independently of the DPP. It would be strange to make gardaí second-class citizens in that they alone would be subject to criminal charges without independent intervention and supervision of the DPP. Representative associations would be unhappy if the DPP's independent, supervisory role was suspended in the case of the Garda Síochána.

There is a provision in the Bill with regard to the extension of time periods. In summary offences, complaints must be made within a certain period of time. The period for making a complaint is extended in section 76 and the period for prosecution is extended in section 96. Currently a significant problem exists in that statutory periods for prosecution of summary offences are frequently eaten up by the Garda Síochána's complaints commission investigation. There is little if any time for a prosecution to be brought on a summary basis. The Bill proposes to extend the time period for invoking the summary jurisdiction of the courts. In the case of indictable offences, there are no statutory time limits.

Amendment, by leave, withdrawn.
Question proposed: "That section 60 stand part of the Bill."

I ask the Minister and his senior officials to closely examine the submission from the Garda Representative Association before Report Stage. I draw their attention to pages 10, 11 and 12. I can see both sides of the coin. However, it is extremely difficult for a member of the force to make a complaint against another member. This issue is not addressed in the Bill. I received the briefing and understand their point. I will not delay the House because it is important the Bill goes through. However, it will not allow a member of the force with a genuine difficulty regarding a situation, such as happened in County Donegal, make their case known to anybody else. They must go to a senior officer and could be reprimanded. They cannot make a complaint against another member of the force.

There is another important point in the Bill. It does not prevent a partner or spouse making the same complaint as a member of the public. There is therefore a way out. It is an unlikely situation, but such situations arise. The ombudsman commission would be justified in investigating a complaint made by a member of the force against another member. I would be interested in the Minister's view. Perhaps he could give the matter due and careful consideration. It would be an unusual situation, but a member of the force may need to rely on a spouse or relation to make a formal complaint against another member, outlining what has occurred on his or her behalf. There is a question regarding the disclosure of information from a garda to a person outside the force, which could prejudice their role as covered by the section we have just debated.

It is only fair that when issues are brought to our attention by a reputable organisation such as the GRA we must bring them to the attention of the House, the Minister and his officials. Both the Minister and his senior officials have been extremely open to every possible recommendation. They have argued their case well. The Minister possibly has a strong view on this issue, but he should perhaps give it consideration. It is of great importance to our 10,000 gardaí, of which there will be 14,000 by 2007.

I am not sure this issue is covered by the section we are discussing. However, a garda should have the opportunity to make a complaint against another garda. Otherwise it is pointless, as borne out by recent tribunals and inquiries. There must be some mechanism within the Bill to allow for this. It is fundamental to the Bill.

The purpose of the institution is to deal with members of the public who make complaints against members of the Garda Síochána. It does not exist to resolve disputes within the force. The Garda Síochána is a disciplined force. If people can issue complaints and have them investigated by the ombudsman commission, the entire process would be completely fouled up with reports. Every dispute, rivalry and disagreement within the force would be referred to the commission for consideration. Such a situation would be a cause for concern. Perhaps we can return to the issue in subsequent legislation if it transpires to be a good idea. However, let us deal with what the legislation addresses, namely members of the public making complaints against the Garda Síochána, not members of the force settling disputes among themselves.

What about the situation in County Donegal? How would we deal with a matter such as that?

The facts relating to that situation could well come to the attention of the ombudsman commission in a different manner. The absence of a complaints mechanism did not lead to the events in Donegal. A complaints mechanism exists at this time with regard to Donegal. What is being asked for here is totally different, namely, that gardaí should be allowed make complaints against each other. I am unconvinced and must be persuaded the present proposals of the Bill are grossly inadequate before I change my mind.

A grievance procedure exists in the Garda Síochána code. There may be room to improve on that opportunity. It is noteworthy that in one instance, implementation of the grievance procedure led to a member being subjected to the Garda Síochána disciplinary regulations, under regulation 9, for having made an allegation against a superior which was not proven. The code of practice was introduced by the then Commissioner, Mr. Culligan, in November 1995. If that code were strengthened it would be worthwhile and perhaps could be the solution to any difficulties the Garda has. It means there would not be repercussions within the force for members bringing forward a complaint under the Garda Síochána code and invoking the grievance procedures. I agree with the Minister that it would then be an internal matter for the Garda Síochána, which is a disciplined force. Perhaps the Minister might review the grievance procedure code introduced by Commissioner Culligan. I believe it would obviate the need for action to be taken through the ombudsman.

There is an ombudsman for the Defence Forces. Senator Leyden mentioned earlier that a spouse of a member of the Garda Síochána could make a complaint on his or her behalf. It would appear farcical that a spouse can make a complaint when a member of the force could not. That might well be worth looking at in the context of the further legislation the Minister said is being contemplated. It seems farcical that a spouse could make a complaint to the ombudsman while the person who is the subject of the disagreement could not take such an initiative.

From reading the legislation there is nothing to preclude a member of the public who may or may not be related to a garda from making a complaint. The Minister may say that could not happen, but they are not precluded. I just note that this is a possibility. It might not ever arise and it would be unfortunate if it did. I am not advocating that it should arise and I do not believe it is proper procedure, particularly as there is a code of practice within the force to allow members to make legitimate complaints against superior officers or colleagues.

As the Acting Chairman knows, the Act provides that complaints can be made by a member of the public who is directly affected by or witnesses the conduct. It is not just anybody. One has either to have had direct personal knowledge of the incident, or to have witnessed it, to comply. Section 94(4) provides that the ombudsman commission may, if it appears desirable in the public interest to do so and without receiving a complaint, investigate any matter that appears to it to indicate that a member of the Garda Síochána may have committed an offence, or behaved in a manner which would justify disciplinary proceedings. How would the ombudsman commission come to such a conclusion? Obviously, it would have to receive information in some way which did not amount to a formal complaint. I have no doubt that if, for instance, a garda witnessed another member of the force beating up a number of people and for some reason the victims felt so intimidated as not to proceed with their complaint, that such a matter could be drawn to the attention of the commission. The commission could consider the issue under section 94 to see whether it was an appropriate case on which to act.

Question put and agreed to.
Sections 61 to 63, inclusive, agreed to.

I move amendment No. 95:

In page 42, subsection (1), line 10, after "Reform" to insert "who has applied for an advertised position, has been interviewed and selected and",

It is clear from section 64 that the staff in the Garda Complaints Board will have the opportunity to transfer to the ombudsman commission. I understand this is the usual practice. However, I am not entirely convinced this is appropriate in these circumstances, if the staff in the complaints board is transferred in its entirety to the ombudsman commission.

The commission needs a fresh start and I believe this Bill provides for that. The existing staff should be eligible to transfer to the commission but should first be evaluated and left in no doubt that this is a new regime and old practices will not apply. That is the gist of the amendment as tabled. A new start is required and I hope it is not just a matter of transferring old practices into a whole new system as proposed in a different context. As somebody put it to me, that would be like going to court with the devil, with the jury from hell. I am not suggesting that applies to this section of the Bill, but I do not want to want to see the ombudsman commission just replacing the old complaints board.

I take a different view. The fact that people are coming from an investigative background enhances the ability of the commission to be effective. Such people will have had vast experience in these systems. As well as that, they will be under new guidance. The person that cracks the whip, in effect, will be driving them. I would be more worried, on my reading of the Bill, as to whether people will have an option to transfer if they do not want to. The Bill suggests to me that they are simply transferring and that it is not within their ambit to refuse, even if they want to move. I just wonder whether that is the position.

Nobody will be press-ganged into service against his or her wishes. If Senator Kett's reading was open, I would certainly insert "with that person's consent". I do not in any sense want to shove a person into something that he or she does not want to be in. There are well-established procedures in that regard.

The provision under section 64(2) underscores the point. Any voluntary staff transfers would also have to be considered in the context of proposals for decentralisation, which is another issue that arises in this regard. There are practical considerations that have to do with the provision of expertise to the ombudsman commission during its initial start-up phase. If the commission is to get under way at all, it requires to have working for it people with at least a vague idea of what is involved, rather than staff being brought in absolutely cold, on a given Monday, to be faced with an entirely new taskload. The commission has the power, in due course, to advertise and recruit its own staff. Provision is made for it to do that under section 63.

I want to stress that we are talking about the performance of administrative functions involving people who know what it is like to receive a complaint and how to process it. It would be a mistake to throw such experience and expertise on to the dump heap just to symbolise that this is a new start. The alternative view is that this body would effectively spend months trying to find its feet and attempting to set up administrative techniques, making mistakes which others, perhaps, have made in the past without having available to it any personal knowledge of the pitfalls as regards where it could be going wrong. I believe the administrative staff should be capable, with their own consent, of being transferred, but that the commission should be the ultimate arbiter on who serves it. That is an aspect of independence that is critical. It is not a case of the Minister for Justice, Equality and Law Reform stipulating that only certain staff may be used all of whom must be his or her nominees. That would undermine the commission.

This is an enabling section the purpose of which is to attempt to get the various functions of the ombudsman commission operating as quickly as possible and to avoid a situation where the establishment of the commission would be followed by a period of inactivity while inexperienced administrators struggled to set up filing systems and methods of dealing with complaints, etc. I agree with Senator Cummins that we do not want old wine in new bottles. On the other hand, we do not want to pour the wine we have down the sink.

I take on board what the Minister has said. It is a matter of public confidence. The last thing we want is that the complaints body would be similar in effect to old wine in new bottles. I agree there are people with expertise who should be eligible to become members. I will withdraw the amendment as the Minister is taking these concerns on board.

Amendment, by leave, withdrawn.
Section 64 agreed to.
Section 65 agreed to.

Amendments Nos. 96 and 97 are related and may be discussed together by agreement.

I move amendment No. 96:

In page 42, subsection (1), line 36, after "may," to insert "where exceptional circumstances arise".

The headnote in this section appears misleading. It refers to special assistance, but there is no reference to special assistance in the section. The headnote gives the impression that the assistance of gardaí will only occur in a special way or circumstances when the opposite is clearly the case. Perhaps the term "habitual assistance" would have been more accurate. I propose that the words "where exceptional circumstances arise" be inserted so as to ensure that the assistance of gardaí can only be sought in exceptional circumstances.

I am not prepared to accept this amendment because I do not want to make the ombudsman commission unworkable. The policy underpinning this provision is that it should be open to the commission to engage whatever expertise it deems necessary for the effective performance of its functions. Given that the commission, just like the Northern Ireland ombudsman, has the power, if it so chooses, to conduct inquiries and investigations by using the services of experienced police officers, members of the Garda Síochána and otherwise, as well as other experts with other forms of relevant expertise, it is not necessary that there must be an exceptional circumstance before an independent body such as the commission can engage such additional support. The commission will be best placed to make its own judgments in this matter in the light of whatever circumstances prevail at the time.

I am not prepared to accept amendment No. 97 either, as it would unnecessarily limit the investigative expertise that might otherwise become available to the commission in the ranks below superintendent. There is nothing wrong with gardaí investigating gardaí. They do it every day of the week. In a case of dangerous driving causing death, a garda will investigate a garda. I am not against that concept. I am also not against the commission having the faith to use gardaí as investigators where it considers it appropriate to do so. I have never gone down the road that it is either "all duck or no dinner" on this issue or that the creation of the ombudsman commission implies that no garda is ever to be trusted with the investigation of another member of the force. I do not believe that.

In the ordinary course of criminal law, the DPP, unfortunately in some cases, must use gardaí to compile cases against other gardaí for matters like dangerous driving or other offences. It is a sad fact that there have been a few rotten apples, who have been investigated thoroughly by their colleagues. I do not believe gardaí have been pulling their punches in those cases. The vast majority of gardaí believe it would be their duty to investigate one of their colleagues in the ordinary course of criminal law if there were grounds for such an investigation. This happens on the infrequent occasions when members of the Garda Síochána commit criminal offences.

I am not prepared to push the ombudsman commission into a corner where it can only use gardaí in exceptional circumstances. It should be free to choose when it will use them. It is worth noting in this context that where the commission does use members of the Garda Síochána, it can require that they be used under direct supervision or it can grant a wide latitude to the investigators to do the job in a quasi-autonomous way subject to the power of revocation. This is the right way to deal with the matter.

I do not want to set up a massive quango. If I was to say that gardaí should only be involved in these investigations in exceptional circumstances, I would probably have to recruit 150 or 200 investigators. The Northern Ireland ombudsman, Nuala O'Loan, has the enormous advantage that she has the rest of the United Kingdom to aid her in these matters. Somebody doing this function in Ireland does not have such resources at his or her beck and call. Therefore, I do not intend making the work of ombudsman commission more difficult by putting greater impediments to it using members of the Garda Síochána.

The commission will sort out clearly when the public interest is best served by the commission doing the investigation or by it asking members of the Garda Síochána to do so. It is impossible to see how the balance will be struck. However, to say that it could only happen in exceptional cases would mean that I would have to build up a huge investigative mechanism. I am not naive on this. I do not want to put hundreds of people into an office block somewhere waiting for gardaí to make mistakes or to have them running around the country looking for work for themselves.

We must be sensible about the issue. The commission must have a number of options open to it, to do its own investigation, to bring in expertise from outside on an ad hoc basis, if appropriate, or to ask members of the Garda Síochána to carry out investigations. I have great faith that the new institution will approach that choice and discretion in an effective manner that will command public confidence.

With regard to amendment No. 97, the perceived lack of independence and the failure of the Garda Complaints Board to adhere to its fundamental principle of not being judge in its own cause has, ultimately, led to its downfall. It is not acceptable that members of the Garda Síochána be brought into the ombudsman commission to investigate other gardaí. I disagree with the Minister in this regard. Many gardaí, superintendents and chief superintendents also feel this way. If, as the Minister suggested, the assistance of highly-qualified gardaí is required, this should be restricted to the rank of superintendent and above. The emphasis should be on bringing in experts from outside the jurisdiction to investigate in such cases. Independence and perception are two vital characteristics which the ombudsman commission must have. The Minister must do all he can to foster this. The section as drafted will not do the ombudsman any favours whatsoever.

The Minister is aware of the views of the Garda Representative Association. It is interesting that that group is not anxious to have gardaí investigating gardaí, and it has made that quite clear. In cases where the commission would ask a garda to investigate a situation, the decision would be made by the three person ombudsman commission. It would not be made by the investigating garda. In such cases, the garda would investigate the case, prepare information and make a detailed submission which would go to the commission for a decision. This should be pointed out.

I can see the difficulty in getting experienced people if the Minister has to recruit hundreds of people to carry out this job. Training would be required which would have to be separate from Garda training. A complete new structure would need to be established. I can understand the practicalities of the situation. The commission may decide not to get a member of the Garda to investigate a particular case, it may decide to get the Garda Commissioner, an Assistant Commissioner, chief superintendent or superintendent. It is also open to the commission to get somebody from Northern Ireland or from outside the State to carry out an investigation. There is ample flexibility in the system. However, it cannot be ruled out that the commission would not call on a member of the Garda from a different region to prepare a report on a situation. That person would not have the final say on the case, which is important. I look forward to the officials having further discussions with the Garda Representative Association, although I doubt very much if they would have any influence at this point.

I have had discussions with the Garda Representative Association on this issue. I assure Senators Cummins and Leyden that this issue was the subject of extremely frank and robust exchanges between us. We understand our positions very clearly.

Amendment, by leave, withdrawn.
Amendment No. 97 not moved.
Section 66 agreed to.
Sections 67 to 69, inclusive, agreed to.

I move amendment No. 98:

In page 45, subsection (2), lines 3 to 5, to delete paragraph (a).

A similar amendment was discussed yesterday in regard to the Garda Commissioner which my colleague, Senator Ryan, withdrew. He took on board what the Minister said. This amendment is in a different category in that it deals with the ombudsman commission. The prohibition on the expression of opinions on the merits of Government policy is incorrect. When changes were proposed in regard to the operation of the Freedom of Information Act, it was appropriate that the former Information Commissioner was able to express a point of view on the proposed changes. If a similar situation arose once the ombudsman commission is up and running or, let us say, if after a couple of years the Minister of the day decided to make changes, I suggest it would be of benefit to get the view of the ombudsman commission on the proposed changes.

The members of the commission should be able to express their views and I am concerned that this provision would prevent them from doing so. They, more than anybody, would know whether there were problems in terms of the operation of the legislation. I ask the Minister to reconsider the matter for that reason.

Without re-opening old wars regarding the Freedom of Information Act, the former Information Commissioner chose to use a report as a mechanism to get across some views to the Oireachtas in ways which stretched things to the very limit of the actual phraseology of the statute. I will not put it any further than that.

This is a standard provision which is to be found in legislation covering the establishment of statutory bodies such as the ombudsman commission. Other bodies that are similarly covered include, believe it or not, the Human Rights Commission, the Ombudsman for Children and the Equality Authority. The purpose of this section is to allow members of the Committee of Public Accounts the opportunity to question the commission on its accounts. While it is clearly open to Oireachtas committees to discuss any matters relevant to the terms of reference, the intention behind the revision is to ensure that committee members do not seek to draw the commission into discussion on matters of public policy in such a setting.

The reason for the provision is because politics is a competitive business and clearly it would be hugely advantageous to somebody who disagreed with a Government policy to recruit important independent bodies to his or her cause. I have no doubt that if we did not have this kind of provision for the Human Rights Commission, people would call it in to say something along the lines of, "Don't you agree with me that what the Minister, Deputy McDowell, is doing is wrong." In those circumstances the commission would be drawn into conflict because some of its interrogators at these committees would have a political interest in recruiting its members, so to speak, to their cause. It is better that bodies, in the context of being accountable to the Oireachtas, would stay out of day-to-day politics and would not get sucked into such policy debates.

The point was made yesterday that they are free to comment on Opposition policies, which I suppose is true. However, they are very unlikely to do so or to be asked to do so, in so far as the Opposition has policies.

I assure the Minister we have many of them. We had them before the Minister's party existed.

Order, please. Is the amendment being pressed?

I will not press the amendment, although I do not think the ombudsman commission would operate in the way the Minister suggested if that provision were not in place nor, I believe, would the Human Rights Commission get involved in the nitty-gritty of day-to-day politics. However, the commission members should be able to comment on policy that relates to their own operation.

The Minister referred to changes to the Freedom of Information Act. I consider it helpful that the former Information Commissioner was able to comment in the way he did.

Amendment, by leave, withdrawn.
Section 70 agreed to.

I move amendment No. 99:

In page 45, subsection (3), line 22, to delete "has been".

We feel the current wording is too broad and that it permanently protects any matter that ever went before a court or tribunal. For that reason, we propose the deletion of the words "has been".

The alternative is to ask the commission to get involved in second guessing the outcome of court and tribunal proceedings. I do not think that is desirable either. We have to have some degree of certainty in regard to these matters. I would prefer not to do that.

The purpose of section 71 is similar to that of section 70. My comments in regard to the focus of such discussions at Oireachtas committees are relevant in this context too. I do not consider it appropriate in the context of an examination of the commission's administration for such committees to draw the commission into a discussion of cases which are, have been or might be the subject of judicial-type proceedings. Such matters are simply not relevant to such an examination and are an opportunity for politicians to re-open issues which at that stage should be closed or sub judice.

Amendment, by leave, withdrawn.
Progress reported; Committee to sit again.
Sitting suspended at 1 p.m. and resumed at 1.30 p.m.