Garda Síochána Bill 2004: Committee Stage (Resumed).
SECTION 71.
Amendment No. 100 not moved.
Section 71 agreed to.
NEW SECTION.
I move amendment No. 101:
In page 46, before section 72, to insert the following new section:
72.—Notwithstanding sections 55 and 73, the exchange of any type of information or other form of co-operation between—
(a) the Garda Commissioner or any member of the Garda Síochána and the Ombudsman Commission,
(b) The Garda Commissioner or any member of the Garda Síochána and the Inspectorate,
(c) the Ombudsman Commission and a comparable body outside the State,
made in the course of, and in accordance with, the duties of that person's office, shall not be an offence.".
The purpose of this amendment is to ensure that the ombudsman commission can co-operate with or provide information to an ombudsman of another police force, where that might be required. It also allows for the free flow of information between the Garda Síochána and the ombudsman commission.
I am not prepared to accept this amendment and, in any event, I am unclear as to the intent behind it. The main focus of the provisions of sections 55 and 73 is on the offence of disclosure of information to third parties, which might have a harmful effect. A range of penalties is provided for, depending on the circumstances relating to the illegal disclosure. There is no suggestion in these provisions that what might be regarded as routine, day-to-day exchanges of information, or other forms of co-operation with the Garda Commissioner or members of the force and the ombudsman commission, or the inspectorate, might be construed as offences.
In addition, I would be concerned if the provisions of section 73 could be put aside for the purpose of the ombudsman commission providing information which might have a harmful effect to comparable bodies outside the State. Such a provision could undermine the confidentiality provisions in the Bill.
Amendment, by leave, withdrawn.
Section 72 agreed to.
SECTION 73.
Amendments Nos. 102 and 103 are related and both may be discussed together by agreement.
Government amendment No. 102:
In page 46, subsection (2), line 35, to delete "has a harmful effect if" and substitute "does not have a harmful effect unless".
The purpose of these amendments is to make corresponding changes to section 73 which contain similar confidentiality provisions to those in section 55. The purpose behind both amendments is to align the text of sections 73(2) and (4) with the corresponding provisions in section 55, which have been similarly amended.
Amendment agreed to.
Government amendment No. 103:
In page 47, subsection (4), to delete lines 21 to 26 and substitute the following:
"(a) is made to—”.
Amendment agreed to.
Amendment No. 104 not moved.
Amendment No. 105 is in the name of Senator Tuffy. The Government has also submitted this amendment. It has already been discussed with amendment No. 84.
Government amendment No. 105:
In page 47, subsection (4)(a)(x), line 36, to delete “necessary for” and substitute “relevant to”.
Amendment agreed to.
Government amendment No. 106:
In page 47, subsection (4), after line 43, to insert the following paragraph:
"(e) is made in the course of, and in accordance with, the duties of that person’s office or employment or of his or her duties under a contract or other arrangement to work with or for the Ombudsman Commission,”.
The purpose of this amendment is to restore a slightly reworded text of subsection (4)(a), which was deleted by Government amendment No. 103.
Amendment agreed to.
Section 73, as amended, agreed to.
Section 74 agreed to.
SECTION 75.
Amendment No. 108 is an alternative to amendment No. 107 and both may be discussed together by agreement.
I move amendment No. 107:
In page 49, subsection (1), lines 19 to 26, to delete all words from and including "Commission—" in line 19 and substitute "Commission by any member of the public".
The purpose of this amendment is to allow any member of the public to make a complaint to the ombudsman commission. I feel this would be a better situation and would promote more confidence in the Garda Síochána than the technical rule of the Bill, as it stands, on the issue of who can make a complaint. Section 75(1) states:
Subject to section 76, a complaint concerning any conduct of a member of the Garda Síochána that is alleged to constitute misbehaviour may be made to the Ombudsman Commission—
(a) by a member of the public who is directly affected by, or who witnesses, the conduct, or,
(b) on behalf of that member of the public, by any other person if the member of the public on whose behalf the complaint is being made consents in writing or orally to its being made . . .
That procedure is similar to how one might make a complaint to the Ombudsman regarding county councils. The wording needs to be broadened in the case of the ombudsman commission, as it does for the Ombudsman. It is relevant to Members of the Oireachtas. For example, before I, as a Member of the Oireachtas, could make a complaint to the Ombudsman about a county council, I would have to obtain the consent of the person affected. There may be reasons people might not want to give me that consent, or may not want to make the complaint themselves. However, as a public representative, I might feel the issue should be raised with the Ombudsman.
The same applies with regard to the Garda Síochána. My point does not only apply to Members of the Oireachtas because others may feel similarly that a complaint should be made to the Ombudsman about a particular matter but they are not directly linked in the way outlined in section 75. The Minister should consider amending the section in the manner suggested by the Labour Party.
I oppose amendments Nos. 107 and 108. Amendment No. 107, at the very least, leaves open the possibility for complaints to be made based only on hearsay. I have no doubt that it would also lead to the making of frivolous and unwarranted complaints to the commission. It would be entirely unsatisfactory to leave open the possibility for any person, upon hearing in passing of an alleged instance of misconduct, to make a complaint to the ombudsman commission.
The provision in the Bill, which defines complaints extensively, is reasonable and sensible. Since it includes any member of the public, there are no age or citizen thresholds. If the complainant cannot make the complaint in person, he or she can make it through any other person and there are no restrictions as to who this other person might be. This allows for the possibility, for example, that a parent, guardian, sibling, child, other family member, friend, teacher, lawyer, priest or some other chosen person can present the complaint.
The provision is as wide as it can be. The only requirement in the case of a complaint being made on a person's behalf is that the complainant must give written and oral consent that the complaint be made on his or her behalf. Moreover, this formality may be dispensed with if the person who wishes to make a complaint is incapable of giving consent because of age or mental condition. There is deliberate intention behind the use in section 75(1) of the words "directly affected" and the reference to a person who has allegedly "witnessed" bad conduct. The purpose is to rule out the making of complaints on the basis of indirect observation through, for example, a video transmission or other such medium.
Regarding amendment No. 108, the purpose of the Bill is to provide a framework for the making of complaints by members of the public against members of the Garda Síochána. A member of the public, for these purposes, cannot be a member of the Garda Síochána. It is not appropriate for this mechanism to be opened up to allow members of the force to make complaints against other members.
Apart from that policy ground, it would open up the prospect that every dispute, rivalry and disagreement within the force would be liable to be referred to the ombudsman commission for consideration. As the Minister has indicated, members of the Garda Síochána should bring such matters to the attention of a senior officer so that they may be dealt with in accordance with Garda disciplinary regulations.
The concerns of a member of the Garda Síochána could well come to the attention of the ombudsman commission in a different manner. Section 94(4) provides:
The Ombudsman Commission may, if it appears to it 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——
(a) committed an offence, or
(b) behaved in a manner that would justify disciplinary proceedings.
Moreover, section 94(5) gives the Minister certain powers that would be exercisable in these types of cases.
Section 107 provides that the Minister may make regulations concerning the maintenance of discipline in the Garda Síochána. Subsection (3)(a) stipulates that these regulations may provide for the procedures to be followed if, “it appears or is alleged that an act has been done or omission made that may be the subject of disciplinary action.” I understand the Minister has every intention of updating the existing disciplinary regulations and making the regulations provided for under section 107.
Will the Minister of State reconsider the issue raised in amendment No. 108? I can see no reason that members of the Garda Síochána should be excluded from making a complaint to the ombudsman commission. Some gardaí may have crucial information about bad practices and abuses they have witnessed. They should be in a position to bring such cases to the commission rather than to a superior officer. I have already raised the Donegal case with the Minister. There must be another avenue available to a garda who has information but is aware that his or her superior officers are involved in collusion or some other misconduct.
I agree with the Minister of State on this issue. It is important to protect whistleblowers in an organisation such as the Garda Síochána. People must feel free to bring matters of concern to attention. However, it complicates matters both for the ombudsman commission and for members of the Garda Síochána if we choose to mix up internal disciplinary matters and the external remit of the commission.
I am reassured by the provision in section 94 which allows the commission to act on its own initiative when the public interest so requires. The provision does not unnecessarily restrict the triggers that could be used to bring that about and could well include instances where the commission has knowledge of an issue that has been brought to its attention by a member of the Garda Síochána. It is better to retain this provision than to complicate matters by incorporating amendment No. 108.
I am concerned that there will be people who will not make a complaint or consent to another person making the complaint on their behalf. However, there may be some other person who wishes to raise the subject of the complaint with the ombudsman commission. How, for example, will a public representative present an issue to the commission if he or she does not have the necessary consent? The Minister of State has mentioned other provisions but they do not address the issue I have raised in amendment No. 107.
Members should remember that the Garda Commissioner is responsible for all matters relating to discipline within the Garda Síochána. The provisions of the Bill dealing with the Garda ombudsman commission have been drafted with this very much to the fore. The Commissioner is the chief executive of the force, to use Senator Quinn's analogy on Second Stage. As such, he or she should properly be responsible for actions taken by members of the organisation.
The Minister has given much consideration to the issues raised in these amendments but we must oppose them.
Amendment, by leave, withdrawn.
Amendment No. 108 not moved.
Section 75 agreed to.
Sections 76 to 83, inclusive, agreed to.
SECTION 84.
I move amendment No. 109:
In page 53, lines 21 and 22, to delete paragraph (a).
Amendment No. 109 proposes to delete lines 21 and 22 of section 84. Sections 84 and 85 are linked because they provide the legal provision for the ombudsman commission to deal with a complaint as it wills. This provision deserves some attention. Section 84 stipulates that the commission has three choices in cases where complaints are not resolved informally or if they warrant investigation. The first choice, contained in paragraph (a), is to “refer the complaint to the Garda Commissioner to be dealt with in accordance with section 86.” Paragraph (b) provides that the commission may choose to conduct an investigation under section 87. The third choice, under paragraph (c), is to direct a designated officer of the commission to investigate the complaint.
I have no difficulty with paragraphs (b) and (c) but propose, under this amendment, that paragraph (a) should be deleted. The purpose of this Bill, and this section in particular which deals with the establishment of the commission, is that gardaí should not be investigating gardaí. Section 84 provides a significant opt-out for the commission in that it allows it to ask the Garda Commissioner to consider matters. The Minister of State may say these are minor, casual issues that do not require a significant degree of investigation on the part of the commission. However, they might not be minor or casual to the person making the complaint. I am informed that the only guarantee we have regarding an independent investigation is that incidence of death or serious harm will be investigated by the commission. It seems everything else has the potential to be investigated by the Garda.
We are concerned that insufficient thought has been given in allowing the very serious opt-out clause in section 84(a). While we are informed an automatic investigation will take place in the case of death or very serious harm, no such guarantee exists for other matters. Who will determine what is serious? It is not appropriate to give the commission an opt-out allowing gardaí to investigate gardaí.
I would like to say a few words from my experience. What is needed in an ombudsman is an office that will deal with serious issues. We also want to inculcate into an organisation like the Garda a culture in which it will face up to and deal with complaints itself. My son was home over the weekend from Yale. He had been overtaken by a police car coming up to a junction and he reported this to the police. He got a very courteous e-mail form the Yale police department thanking him for calling the matter to its attention and informing him that it had been brought to the attention of the officer who had admitted it. I cannot think of any police force in these islands that would have given him that sort of response.
Organisations should be forced to consume their own smoke in the same way as large business organisations deal with dissatisfied customers. There is much to be said for allowing the ombudsman to tell an organisation that it should be able to deal with it itself and let him know the outcome. For the early years of its operation, the ombudsman should be slow to do that. I defined this in another report as being a policy akin to purchase and leaseback. As people show their ability to deal as an organisation with complaints, they should be allowed to do so.
I would prefer the Bill to leave this facility to the ombudsman commission, always remembering that the commission is required to report to a committee of the Houses of the Oireachtas on its operations. It would be a mistake to force the commission to launch a serious investigation of everything coming to its attention and would divert it from investigating the really important matters in which it should be involved.
The Minister is opposed to these amendments as the intention behind them is to remove the provisions in the Bill providing for the referral of complaints to the Garda Commissioner for investigation, even in circumstances where they might be supervised by the ombudsman commission.
This brings us back to the point about gardaí investigating gardaí. Senators may have some misunderstanding here. The provisions of the Bill follow very closely the relevant provisions, sections 56 and 57, of the Northern Ireland Act 1998, which established the Police Ombudsman for Northern Ireland. Those provisions in turn were developed from the recommendations in the 1997 report by Senator Maurice Hayes.
Senator Maurice Hayes concentrated on three main models for investigation of complaints against the police following his comprehensive study of the various systems in operation in other jurisdictions around the world. These were investigation by the police with external oversight, complete handling and investigation of police misconduct by a body external to the police service and a combination of police investigation with external oversight for more minor matters with more serious ones being investigated by the external body. The first of these more or less corresponded with the then system in place in Northern Ireland, England and Wales with some variations of it being found in the Garda Síochána Complaints Board here as provided for in the 1986 Act, and in New Zealand and Ontario.
Very significantly for the purposes of this debate, Senator Maurice Hayes reported he saw no example of the second option of complete investigation by an external body investigating all cases and recommending action, whether civil or disciplinary. A quote from the relevant paragraph 13.31 in the report is illuminating. Senator Maurice Hayes noted that such a system:
. . . would remove the responsibility completely from the police (even for the most minor cases). It would do this at a time when there is a need and a drive, not least from within the police, for greater management responsibility in the police service. It would also present difficulties in terms of finding sufficient investigating officers to manage the workload. There would also be problems in breaking into the police culture. Such a body is unlikely to gain police confidence easily and this in turn is bound to affect its credibility.
The final option is the mix of police investigation with independent oversight and investigation by an independent complaints body, usually in the most serious cases. Informal resolution may also be employed by the police for minor matters. Senator Maurice Hayes concluded that a variant of this latter system would be the ideal towards which the police complaints service in Northern Ireland should develop. However, he also said that in view of the lack of confidence in the system in that jurisdiction, the ombudsman should probably investigate all but those complaints considered suitable for informal resolution.
In his scheme he recommended that complaints would be categorised under the following three headings: serious complaints possibly involving criminal action, such as death in custody, serious injury, etc., which the complaints body would have a statutory duty to investigate; less serious, but still substantial complaints which might, at the discretion of the complaints body, be remitted to the police for investigation and report, either supervised or unsupervised; and quality of service type complaints which would be remitted to the police for informal resolution.
It is strange, therefore, that having been exhorted to follow as far as possible the situation which obtains in Northern Ireland, calls are being made to depart from that system in a way which is radically different from the approach adopted there. Sections 82 to 90 in the Bill deal with the ways in which complaints against the Garda Síochána are to be investigated by the independent ombudsman commission. In essence in cases of death or serious harm to a person, the ombudsman commission alone must investigate the matter and this applies even where no complaint has been made. In other cases, the commission can require the Garda Commissioner to investigate the matter. Such an investigation is subject to certain conditions as to the nomination of the investigating officer and the procedural safeguards as set out in sections 86(8) to 86(11), inclusive, which are built in throughout the process.
Alternatively the commission can directly supervise the Garda investigation, again with the power to attach conditions. In those cases where the ombudsman commission decides to use members of the Garda Síochána it can require that they be used under direct supervision or it can grant wide latitude to the investigators to do the job in a quasi-autonomous way subject to the power of revocation.
In no way does the Minister accept that the Bill provides for the Garda to investigate itself. No matter what route is chosen by the ombudsman commission to investigate complaints, ranging from the most serious allegations, including those relating to the commission of possible criminal offences, to those at the lower end of the scale which may involve breaches of discipline, the commission retains absolute control and direction over the whole proceedings. It would be completely unworkable for the commission to have to investigate every matter relating to a breach of discipline, no matter how small. It is entirely appropriate for such matters to be dealt with by the commissioner who is, as I have said before, responsible for the quality of service provided by his or her organisation.
The point remains that the ombudsman commission is in overall control. In this House last Friday, during the course of his contribution to the debate on amendments Nos. 96 and 97, the Minister made it abundantly clear that nothing is wrong with gardaí investigating other gardaí. They do so every day of the week and we would all be aware of the cases they have pursued forensically across a wide spectrum of illegal activities by a few rotten apples, who unfortunately have betrayed their oath and the trust placed in them.
I thank the Minister of State for his reply. I would be satisfied if he could answer the question I am about to pose in the affirmative. Is he saying that at all stages the commission will be in possession of a complaint? In other words, if a complaint is made and the commission hands it over to the Garda because it involves a minor matter, will the commission, at some stage, be able to re-examine the case? Do I understand that it will have full control over complaints? While it awaits an initial determination of complaints from the Garda, will the commission be able to re-investigate a matter if something more serious emerges?
Yes, the commission will have that power and will be able to investigate complaints at any time.
I apologise to the Minister for going on at length. If I had known I was going to plagiarise myself, I would have left it to him to do it.
I apologise to the Senator.
There are two Senators by the name of Hayes.
Amendment, by leave, withdrawn.
Section 84 agreed to.
Section 85 agreed to.
SECTION 86.
Question proposed: "That section 86 stand part of the Bill."
We had intended to oppose this section for the same reasons outlined in respect of the amendment we tabled to section 84. We are obviously not going to get anywhere with the Minister of State and we accept what he said. We will, therefore, withdraw our opposition to the section.
Question put and agreed to.
Section 87 agreed to.
SECTION 88.
I move amendment No. 110:
In page 56, subsection (3), between lines 19 and 20, to insert the following:
"(b) shall be granted legal representation and related costs,”.
People who are brought before the ombudsman commission should be entitled to costs and legal representation. I hope the Minister of State will take on board the amendment because there is no reason the costs incurred by anybody coming before the commission should not be paid.
I support my colleague in respect of this matter. No one wants to ensure that the legislation might represent an opportunity for lawyers to become even more wealthy. However, if someone makes a serious complaint to the commission — and even if the commission investigates said complaint in a private forum, which undoubtedly would be the case — I would have thought that basic legal representation would be afforded to the complainants on the basis that they would be doing not only themselves but also the public a service by bringing forward a complaint. It is important that people dealing with the commission would be given the right to representation. Many of the matters involved would be intricate and detailed and people would need to be advised throughout proceedings. This has not been provided for in the legislation and perhaps the Minister of State would indicate why that is the case.
I am not prepared to accept this amendment. The question of payment of costs in respect of legal representation in these circumstances has been raised with me on a number of occasions by the Garda associations and I have resisted at every stage. There is no provision for the payment of costs in respect of legal representation under the existing Garda Complaints Board scheme. I do not propose to change that. As I understand it, the Garda associations have arrangements in place for the provision of support to members who decide to avail of legal representation.
This makes my blood run cold and it would be almost unworkable. The entire point of the ombudsman system is to provide a less formal means than that available in a court in order to deal with particular situations. Once the idea of representation for any group is imported, every other group will seek equal representation. It is not only the cost involved about which I am concerned. Allowing representation would have a dramatic impact and would probably bring the system to a grinding halt.
The procedure we always used was that a person could bring a friend with them. That person was often a trade union representative or perhaps a solicitor but he or she would have been present in a personal capacity. I know of no ombudsman system anywhere in the world that admits of legal representation in that way. If people think that an ombudsman is exceeding his or her powers or has not given proper consideration to a complaint, he or she may be the subject of a review. However, that is a different matter. Allowing legal representation would hideously complicate the workings of the Act.
Would the Minister of State take on board Senator Maurice Hayes's suggestion that a person making a complaint could bring a friend with them, whether it be a trade union representative or a member of a representative association? That might come some part of the way towards meeting what is intended in the amendment. People should be allowed to bring some form of representation with them.
I appreciate the points made by Senator Maurice Hayes. However, my experience — albeit in respect of the existing Garda Complaints Board system — is that the big legal guns make a difference. I was involved in a particular case and I encouraged someone to take a case all the way to the courts. The person to whom I refer was an ordinary citizen and his mother was not of huge means. Not only did they come up against the might of the individual garda involved but also that of his entire representative organisation, which gave him 100% support. The latter made a huge difference in the case to which I refer. Admittedly, the case had been referred to the courts by the Garda Complaints Board at the end of its procedure. We need to take account of the fact that vulnerable people making complaints with the best possible intentions will be fought the entire way. Gardaí, whether it is right or wrong, have the full force of a representational organisation behind them, whereas ordinary people do not.
I am inclined to accept what Senator Maurice Hayes said in respect of the need for a person making a complaint to have with them a witness or someone to offer them support while trying to tease out the complaint with the investigating officer. That is a good suggestion. However, we should not underestimate the power of the legal machine when it gets going. In the case to which I refer, a poor result was obtained from the court because the person involved could not afford to meet, head-on, the full force of the legal representation arrayed against them.
Drawing on the analogy of the courts may be sending us down the wrong road. The ombudsman procedure is not confrontational in nature. An ombudsman operates in a manner similar to that adopted by French investigative magistrates. I would regard it as the duty of an ombudsman to observe the type of balance to which the Senator refers in order to ensure that ordinary people are decently represented and provided with every opportunity to present their cases. The ombudsman procedure does not, of its nature, allow for head-to-head confrontations in which people are browbeaten by opposing counsel.
I did not propose the amendment. If I did, I would have to declare an interest because I am a solicitor. Is there an appeal or grievance procedure available to people who might be dissatisfied with the handling or outcome of their complaints?
I understand that a complainant can bring with him or her a friend or someone of that nature. There is nothing to stop them, in the legislation, as drafted, from doing so.
Is provision made for an appeal or grievance procedure?
There is such a procedure.
The entire nature of the ombudsman system is that there are no appeals. There cannot be appeal after appeal after appeal. The essence of the thing is that there is one fair minded person or group of people in possession of the facts looking at something and making a judgment. It may be reviewed on the grounds it was not done properly or people were not listened to but, in the sense of creating a further court of appeal, that does not arise.
I did not mean a court of appeal.
Amendment, by leave, withdrawn.
Section 88 agreed to.
Section 89 agreed to.
SECTION 90.
I move amendment No. 111:
In page 58, subsection (1)(b), line 18, after “investigation” to insert “and any interview conducted with a member arrested under this Act shall be subject to procedures which shall be prescribed by the Minister for the video and audio recording of interviews with arrested persons generally”.
This amendment ensures that the procedures that apply to everyone else would apply in the case of an investigation by the ombudsman commission.
The Minister is not opposed to the principle behind this amendment. It is, however, unnecessary to amend the Bill to achieve its objective. As of now, 96% of interviews are electronically recorded. I am currently studying the third report of the steering committee on audio-video recording of Garda questioning of detained persons, presented to me last September. The committee is satisfied with the operation of the electronic recording of interviews to date and it is pleased to note the high percentage of interviews that are now recorded under the appropriate regulations.
Under the existing procedures, as set out in the Criminal Justice Act 1984 (Electronic Recording of Interviews) Regulations 1997, a member of the Garda Síochána who is being interviewed about any alleged offence, or suspected illegal activity, has the right, like anyone else, to have the process recorded. It follows that in the circumstances covered by the Bill, the same situation should apply.
It is also relevant that in accordance with the provisions of section 100 of the Bill on the drawing up of protocols between the ombudsman commission and the Garda Commissioner, interviews conducted by the designated officers of the ombudsman commission will be conducted by them in interview rooms in existing Garda stations.
Amendment, by leave, withdrawn.
I move amendment No. 112:
In page 59, subsection (5), lines 8 and 15, to delete all words from and including "but" in line 8.
We have tabled this amendment because we do not agree with the exception provided in section 90 and we do not feel there is any logical reason powers under the Offences against the State Act and the Interception of Postal Packets Act should not be available to the ombudsman commission when it is investigating a possible offence by a member of the Garda Síochána.
The Minister is opposed to this amendment. The powers at present available to members of the Garda Síochána under the legislative provisions in question are highly unlikely to be required by designated officers of the ombudsman commission for the purpose of conducting investigations into complaints from members of the public about members of the Garda Síochána. It is for that reason that these provisions are specifically excluded from the definition of the term "enactment" in sections 5(a) and (b).
The provisions in question relate to the Offences against the State Acts, particularly the powers of extended detention periods and the telephone intersection measures in the 1993 Act. In the case of the latter, however, the designated officers of the ombudsman commission will have the same powers that are available to a chief superintendent of the Garda Síochána to obtain the billing information or call-related information from service providers, but not the call content, to assist them in their investigations in serious cases. That is the purpose behind the reference to the application of section 13(2) of the 1993 Act in section 95(b) of the Bill.
Amendment, by leave, withdrawn.
Section 90 agreed to.
SECTION 91.
I move amendment No. 113:
In page 59, subsection (1), lines 18 and 19, to delete "complaint under section 90” and insert ‘‘a matter under this Act”.
This relates to the power to search a Garda station, which should not be restricted to investigations under section 90 but should be available when any matter under this Bill is being investigated. Why is the Minister so anxious to restrict the powers of the ombudsman commission which he is establishing?
Why is section 91(1) restricted to a complaint under section 90? Surely it should relate to any matter pertaining to the Bill? This is convoluted. The investigating officer operating on behalf of the Police Ombudsman for Northern Ireland has the power to turn up at any station without any information being given to the PSNI. Section 91(3) states:
Before issuing an authorisation to search a Garda Síochána station designated by regulation under section 109 as one that, for reasons related to the security of the State, may not be searched except to the extent specified in a direction of the Minister, the Ombudsman Commission shall notify the Garda Commissioner and the Minister of its intention to issue the authorisation.
Are we not making this complicated? The commission, through its investigating officers, should have the power to turn up when, as often and to as many stations as it likes. That is the process in Northern Ireland. If the ombudsman informs the Garda Commissioner, and if it is known that people are coming, does that not defeat the purpose of having the power to search in the first place?
I found this section hard to understand in the general tenor of the Bill, which is to provide for a system of investigation of complaints that would have public confidence and that would be open and transparent. All of a sudden power is given to other people to block the ombudsman at a critical point in an investigation.
One of the difficulties in the old situation in Northern Ireland was that the Chief Constable could decide what was or was not a complaint. This is the same. I am not saying that either a Minister or a Garda Commissioner would in any way collude in the covering up of matters but delay and complexity are being interposed. There organisations have their own means of disseminating information and grapevines work in such a way that sometimes people must get in quickly to ensure evidence is secured. The greater the delay and the more the complication, the more difficult it becomes. It would be a better Bill if this section were removed.
I can see the need for some sensible agreement between the ombudsman and the Garda Commissioner on protocols about how these things would be advanced so people would not be swinging from the rafters in Garda stations at all hours of the day and night. Nevertheless, it has been made complicated and it might go some way not only towards defeating the purpose of the Bill but of reducing its impact in the public mind in terms of independence.
I am inclined to agree with Senators Brian and Maurice Hayes. It seems to me that the element of surprise is one of the ombudsman's better tools when raiding a Garda station. If one will have to go to the Garda Commissioner to seek his permission before doing so, the power of the investigation would surely be damaged if — God forbid — the Garda Commissioner were involved in any form of collusion.
I oppose the amendment because it seeks to give the commission the power to authorise searches of Garda stations in circumstances in which a complaint might not involve an offence. With two exceptions which we have discussed, designated officers of the ombudsman commission will have all the powers of gardaí when conducting investigations into complaints which appear to involve offences. The clear intention of section 90 is that such powers will be used for the purpose of investigating complaints which appear to involve offences only. Similarly, the power to search Garda stations applies for the purpose of investigations under section 90, but only if the commission is satisfied that the designated officer has reasonable cause for suspecting that the member under investigation is guilty of an offence, and has reasonable grounds for suspecting that evidence of, or relating to, the commission of the offence is to be found in the station, or in the possession of any other person to be found there. It would be wholly inappropriate for the provisions to be extended to circumstances in which offences are not involved and I am not prepared to move in that direction.
I will not pursue the amendment, but I hope the Minister of State will reconsider it on Report Stage. The general consensus of the Senators present is that the ombudsman commission may not be as effective as we would like if the element of surprise is removed. I will not press the amendment now, but I ask the Minister of State to return with a way of dealing with the matter on Report Stage.
I share the reservations expressed by Senator Cummins. I hope the Minister of State will find a suitable form of words.
Amendment, by leave, withdrawn.
Government amendment No. 114:
In page 60, subsection (5)(a), line 3, after “part” to insert “of” where it firstly occurs.
This is a simple drafting amendment that proposes to insert the word "of" in section 91(5)(a).
Amendment agreed to.
Question proposed: "That section 91, as amended, stand part of the Bill."
Can I discuss the complicated and convoluted way in which this section is drafted, which was raised by Senators Maurice Hayes and Kett? The Minister of State has said it is appropriate to search a station if it is considered that a serious offence under section 90 may have taken place. Why is a considerable opt-out clause provided for in sections 91(3) and 91(4)? What is the point of informing the Garda Commissioner that one is coming to visit a station? Surely that defeats the purpose of surprise, which is needed when one is trying to acquire information and evidence. If we accept for the moment that the offence in question is a serious one under section 90, what is the point of the ombudsman commission telling the Garda Commissioner that it is coming to a station, as provided for in sections 91(3) and 91(4)?
There is a distinction. The crucial difference is that the PSNI is not concerned with state security.
I have been informed by my officials that what I have just said is true. The PSNI is not concerned with state security.
I think the Minister of State has been misinformed.
Is the Army supposed to be in charge of security?
The blocking procedure applies only to designated Garda stations — those stations which, in the opinion of the Commissioner, may contain sensitive security information. In such cases, the Minister has the power to allow the search to go ahead, while restricting it to certain areas of the Garda station.
We have moved slightly beyond the section under discussion. It is clear that there is a need to protect sensitive information. Everybody should not be allowed to tramp over those dealing with certain matters. I referred earlier to certain protocols. When I was doing this job in the North, I encountered cases of people who were refused permits to work in electricity stations, for example, because of information that was held. I agreed with the chief constable at the time that I, or a particularly designated officer, who happened to be an ex-policeman, should be allowed to go to see such information. The Government and the Minister could prevent the ombudsman from publishing a report that appeared damaging to state security, but they could not prevent the ombudsman from seeing the information in the first place.
I gave the ombudsman credit for having some regard for State security. Such matters could be handled by means of decent protocols, etc., rather than by blanket exclusion.
I wonder if the Minister of State will examine this matter again before we consider the Bill on Report Stage. The manner in which this section is framed provides for the possibility of concealment, which is not what we want to happen. Such concealment may require a conspiracy between a number of people, but it could happen.
Perhaps we could consider a proposal along the lines suggested by Senator Maurice Hayes. Rather than designating what can be checked by the ombudsman, I would approach it from the other angle. I would identify what the ombudsman cannot access, for example on the grounds of its being sensitive. If identifying such matters by name is a security breach in itself, perhaps they could be identified by letter, for example. If there is a subsequent dispute or a further investigation is required, the Minister should be able to appoint an independent Garda officer who could examine that and satisfy himself as to whether the initial decision to protect the information for security reasons was valid. The way in which this section of the Bill is written does not seem to allow for any recourse or subsequent system of appeal. This matter needs to be examined so that it does not give rise to any abuse.
Perhaps those involved will take a look at it because that is what the Members of the Seanad ultimately want to achieve. I do not think we can prescribe the mechanism for achieving that. It is important that the ombudsman should not be denied the information which is necessary if he is to conduct a thorough investigation. A certain level of protection is needed to ensure that security privileges cannot be claimed on relatively dubious grounds.
I am mindful of what Senator Jim Walsh has said. Under section 91(4) of the Bill, the Garda Commissioner can reject a request to search a station "on grounds relating to the security of the State". It is interesting that the Bill does not define what "the security of the State" means. If one tries to use those grounds to refuse to accept a search, one has to define what they mean. Section 91(9) states that a Garda station is "any premises where a member of the Garda Síochána is stationed". The point made by Senator Jim Walsh is valid. What documents are we talking about? What is the nature of the issues which may relate to "the security of the State"? Any issue could be included. Perhaps the Minister of State will return to this matter on Report Stage.
We can return to it on Report Stage.
Question put and agreed to.
SECTION 92.
Government amendment No. 115:
In page 61, subsection (5), line 42, to delete "application" and substitute "objection".
This is a simple drafting change to delete the word "application" and insert "objection" in section 92(5).
Amendment agreed to.
Section 92, as amended, agreed to.
SECTION 93.
I move amendment No. 116:
In page 62, subsection (2), line 14, after "concerned," to insert "it may institute criminal proceedings against the member and if it decides not to do so".
The Minister rejected a previous amendment in this regard. This amendment proposes that the Garda ombudsman commission should be entitled to prosecute members of the Garda Síochána and should not be dependent on the Director of Public Prosecutions in this regard. Without this power, its role will be diminished.
The Minister is opposed to this amendment for the reasons he outlined last Friday during the debate on a similar subject arising from amendment No. 94, which concerned section 60. The Minister stated that, in the context of a criminal proceeding, the role of the ombudsman commission is purely investigatory in nature and that it would be wrong for it to have a prosecution role in addition to its investigatory function in establishing facts. He stated:
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.
The Minister has no doubt that the representative associations would be very concerned if the DPP's independent, supervisory role were suspended in the case of the Garda Síochána.
Amendment, by leave, withdrawn.
Section 93 agreed to.
SECTION 94.
Amendment No. 117 is consequential on amendment No. 118 and they may be discussed together by agreement.
I move amendment No. 117:
In page 63, lines 20 to 26, to delete subsection (4).
This amendment is about presentation but it concerns a very important matter. The power of the ombudsman commission to initiate an investigation of its own volition has been crucial. This power is one of the cornerstones of an independent investigative body such as that proposed. Such is its importance that it should be highlighted in a section of its own and not hidden away in another. The scope of the commission's power to investigate a matter should not be limited to circumstances in which a member of the force has behaved badly. It should be open to the commission to investigate policing matters generally.
A similar amendment concerned the Defence Forces ombudsman and it was discussed some weeks ago. The argument we put forward was that the Ombudsman for the Defence Forces should have an open hand in investigating any matter of concern, not just in respect of offences but where there is general public dissatisfaction over a practice within the Defence Forces. To be wholly consistent with the approach we have taken regarding the Ombudsman (Defence Forces) Bill, we have outlined in amendment 118 our view that the power to initiate investigations by the commission itself is important. This power should be given to it. I am interested to hear the Minister of State's reply.
I am not so sure about this amendment. It is not so much that I am treading on my dreams but I am treading on somebody else's interpretations of my dreams. The difficulty associated with investigating practices, as proposed, is that it almost establishes the office of the ombudsman commission as an inspectorate. There are two different functions to be considered, namely, that of investigating complaints and that of ascertaining how the whole operation is managed. The two should be separated although it is sometimes difficult to do so. If the ombudsman commission believes a complaint arises from a particular practice or means of dealing with certain circumstances, it is quite free to recommend a change. However, if one simply gives the commission a charter to investigate practices, one could be letting people loose all over the place, or there could be requests for them to be let loose all over the place. This might confuse management. It is the job of management to manage and it should be left to do that job. It should be accounted for in some way other than through the investigation of complaints.
The Minister is opposed to amendments Nos. 117 and 118. The intention behind them is to extend the current provisions to provide for the ombudsman commission to investigate on its own initiative any matter regarding the activities of the Garda Síochána, particularly policing practices. This is unnecessary because adequate provision is made in section 98 for the commission to examine certain practices, policies and procedures of the Garda. The Minister does not agree with the proposition that the provisions in section 98 do not allow for the ombudsman commission to take the initiative in these matters. Subsection (2) clearly allows the commission to identify any potential problem and to recommend to the Minister that a particular practice, policy or procedure be examined.
Amendment, by leave, withdrawn.
Section 94 agreed to.
Amendment No. 118 not moved.
Section 95 agreed to.
Sections 96 to 99, inclusive, agreed to.
SECTION 100.
I move amendment No. 119:
In page 65, between lines 39 and 40, to insert the following subsection:
"(2) Protocols adopted pursuant to this section shall be laid before both Houses of the Oireachtas.".
This amendment provides for publicity and transparency for protocols under section 100.
The Minister is not prepared to accept this amendment. The purpose of section 100 is to ensure that appropriate administrative arrangements are agreed between the Garda Commissioner and the Garda Síochána ombudsman commission on certain important operational activities. The aim is to ensure that the resources of both organisations are used efficiently and effectively and that opportunities for synergy are maximised so investigations can proceed without undue delays. The matters specified in the Bill that are to be made the subject of protocols are operational matters and they are to be agreed exclusively between the Garda Commissioner and the commission.
Interagency guidelines and protocols provide a framework within which the work of the relevant agencies can proceed in harmony. The Garda Síochána is party to protocols with other agencies with which it interfaces on a daily basis. Health boards, for example, come to mind. These protocols have not been laid before the Houses of the Oireachtas. It is not necessary for protocols dealing with operational matters such as these to be laid before the Houses.
Will the Minister of State say whether it would be possible to expect both the Commissioner and the ombudsman commission to indicate in their respective annual reports the existence of inter-force agreements or protocols? In that informal way the purpose of the amendment would be met because there should not be secret agreements. These matters should be in the public domain.
That is a good suggestion and we can look at it.
Amendment, by leave, withdrawn.
Section 100 agreed to.
Sections 101 to 104, inclusive, agreed to.
NEW SECTIONS.
Government amendment No. 120:
In page 67, before section 105, to insert the following new section:
"PART 5
Establishment and Functions of Garda Síochána Inspectorate".
"105—(1) The Minister shall, by order, appoint a day to be the establishment day for the purposes of this Part.
(2) An order under this section shall be laid before each House of the Oireachtas.".
This is the usual type of provision which provides for the making of a ministerial order appointing a day for the establishment of this part of the Bill. Such an order must be laid before both Houses of the Oireachtas.
It might be useful if I set out the background to provisions in Government amendments Nos. 120 to 127, inclusive. The Minister proposes to establish a new Garda Síochána inspectorate in line with the policy behind the Bill to make further and better provision for the Garda Síochána. Use of the word "inspectorate" may cause some confusion because at one time the intention was to establish a body to investigate complaints about the gardaí which was to be called the Garda Síochána inspectorate. This title was preferred over ombudsman because the new body was to have a remit and functions which would be more extensive than those normally associated with an ombudsman type of body. For example, the new body would be made to investigate matters on its own initiative without the need for a prior complaint. It would also have an investigatory and advisory role on Garda practices and procedures which might give rise to public criticism and disaffection.
The Minister took the view that too much time and effort was concentrated on the title of the new body so he decided to use the term ombudsman commission instead. This was to reflect the fact that the term ombudsman on its own would generally convey the idea of a one-person operation whereas the Government felt that a three-person body was a better option in this jurisdiction. There are precedents for this approach in other jurisdictions in the context of the usual remit of such bodies, for example, to investigate problems arising from an individual's dissatisfaction with the administrative apparatus of the State.
The wheel has come full circle in that an inspectorate is being established but it is a body which is more in keeping with the inspectorate of constabulary in England and Wales. Its functions are quite different from those of the ombudsman commission. The decision to establish the inspectorate originates in the first report of the tribunal established under the chairmanship of Mr. Justice Morris to inquire into allegations of Garda corruption in Donegal. The Minister is bringing the proposal forward in the light of the tribunal's recommendation that the Minister for Justice, Equality and Law Reform, in line with his statutory oversight role regarding the Garda Síochána, must be empowered by knowledge. The inspectorate's main functions will be to ensure that the Minister has objective information on matters relevant to the functioning of the force consistent with the aims of this Bill to make further and better provisions for the Garda Síochána.
The purpose of these amendments is to provide for the setting up of a three-person body, one of whom will be known as the chief inspector. The inspectorate will look at and examine thematic policy issues with standards, practice and performance benchmarked to comparable international policing experiences. The key objective will be to ensure, and promote advice and support for the Minister and the Department. The Minister is confident that the new body will ensure that the Minister for Justice, Equality and Law Reform of the day will be better informed on particular aspects of the policing function and will thus be in a position to give up-to-date and accurate information to the Oireachtas as required and in accordance with his or her constitutional and statutory obligations.
Amendment agreed to.
Government amendment No. 121:
In page 67, before section 105, to insert the following new section:
"106.—On the establishment day, a body to be known as Cigireacht an Garda Síochána or, in the English language, the Garda Síochána Inspectorate stands established to perform the functions assigned to it by this Act.".
This is the usual type of provision providing for the establishment of the Garda Síochána inspectorate.
Amendment agreed to.
Government amendment No. 122:
In page 67, before section 105, to insert the following new section:
"107.—(1) The Garda Síochána Inspectorate shall consist of 3 members, to be appointed by the Government.
(2) One of the members shall be appointed as Chief Inspector.
(3) At least one of the members shall be a woman and at least one of them shall be a man.
(4) A person shall not be appointed as a member unless it appears to the Government that the person is suitable for the appointment by reason of—
(a) his or her service as a senior officer or retired such officer in the police service of another state, or
(b) having otherwise obtained such relevant experience, qualifications, training or expertise as, in the opinion of the Government, is or are appropriate having regard, in particular, to the functions of the Inspectorate.
(5) A person is not eligible to be appointed under this section if he or she is or has been a member of the Garda Síochána.
(6) The first appointment of persons to be members of the Inspectorate becomes effective on the establishment day.".
Subsections (1), (2) and (3) provide for a three-person body to be appointed by the Government with the appropriate gender clause and the appointment of one of those persons as chief inspector. Subsection (4) sets out the selection criteria for members of the inspectorate. It covers the appointment of a senior police officer, serving or retired, from outside the State, the intention being that the Government will appoint suitable persons from other common law jurisdictions. Those persons may also fulfil the requirements set out in (4)(b). Similarly, persons from inside or outside the State, other than senior police officers, may also be appointed once they satisfy the relevant criteria. This will facilitate the appointment of suitable persons with law, management, finance, logistics, business etc. experience.
Overall, the intention is to give the Government a wide choice in the selection of potential members. As a matter of policy it is for consideration as to whether the first chief inspector should be Irish, particularly in view of the inspectorate's role before an Oireachtas committee. Subsection (5) provides that serving or past members of the Garda Síochána are not eligible for appointment as members of the inspectorate. Subsection (6) provides for the first appointments to the inspectorate to become effective on the establishment day. No provision is made for the appointment of a serving judge to the inspectorate.
I welcome these amendments because they strengthen the Bill significantly. I was confused in the earlier discussions by the confusion between the potential ombudsman and the inspectorate. It is very important that there be an inspectorate but there is a difficulty in having an inspectorate for a single force. Her Majesty's inspectorates in the United Kingdom cover several forces so there is comparability. One of the models which the Minister of State could consider is the implementation commission set up under the Patten report in Northern Ireland which has functioned very well.
Does the Minister of State contemplate the inspectorate publishing its report in full or part, which could be helpful in maintaining public confidence in the force? With regard to the appointments, it is absolutely right to have a senior police officer from other forces. No member of the Garda Síochána should be involved but it requires people who have experience of management and so on. As regards the appointment of Irish people, I know a couple of distinguished Irish officers holding senior ranks in other police services and forces around the world who would be very good at this job.
I thank Senator Maurice Hayes for his comments. I will deal with the issue of publication later.
Amendment agreed to.
Government amendment No. 123:
In page 67, before section 105, to insert the following new section:
"108.—(1) A member of the Garda Síochána Inspectorate holds office for the period determined by the Government at the time of appointment.
(2) A member is eligible for reappointment.
(3) A member holds office on the terms and conditions relating to remuneration (including allowances for expenses, benefits in kind and superannuation) or other matters that may be determined by the Minister, with the consent of the Minister for Finance, at the time of appointment or reappointment.
(4) A member may at any time resign his or her office by letter addressed to the Minister, and the resignation takes effect on the date of receipt of the letter.
(5) A member may be removed from office by the Government for stated misbehaviour or if, in its opinion, the member has become incapable through ill-health of effectively performing the duties of the office.
(6) Whenever a vacancy occurs in the membership of the Inspectorate caused by the resignation, removal from office or death of a member, the vacancy is to be filled by appointment in accordance with section 107.
(7) A member who is appointed to fill any such vacancy holds office for the remainder of the term of office of the replaced member.
(8) The Inspectorate may act notwithstanding any such vacancy or any resulting noncompliance with section 107(3).".
For the information of the House, the footnote refers to section 107 in subsection (6) and to section 107(3) in subsection (8).
In order to give the Government maximum flexibility subsection (1) does not specify any definitive period of appointment for any of the inspectors. It seems likely that different aspects of the work of the Garda Síochána will be examined from time to time. Some areas will be more complex than others and the time involved to complete inspections will be less in some cases than others. The Government may wish to consider appointing the chief inspector for a longer period than the two inspectors, who may be appointed for their particular expertise in selected areas of the policing function. Subsections (2) to (8) are standard provisions.
I move amendment No. 1 to amendment No. 123:
In subsection (1), after "appointment" to insert ", being such a period not exceeding 5 years".
I recognise the sense in allowing a member of the inspectorate to be reappointed. However, a person should only be eligible for reappointment once. The inspectorate would stagnate and become redundant if the same members were reappointed time after time.
The amendment places an unnecessary restriction on the flexibility I wish to leave available to the Government in this important area. Subsection (1) of the new section 108 to be inserted following acceptance of amendment No. 123, does not specify any definite period of appointment for any inspector so as to give the Government maximum flexibility in this regard. Different aspects of the work of the Garda Síochána will be examined from time to time, and some areas will be more complex than others. Consequently the time involved in completing inspections will vary. In such circumstances, the Government may wish to consider appointing the chief inspector for a longer period than the two inspectors who, as I have already said, may be appointed for their expertise in particular areas of the policing function. Retention of expertise and knowledge will be an important aspect of the inspectorate's work, and I wish to exclude any provision which might cause the unnecessary loss of such to the new body.
I urge the Minister of State to consider the points made by Senator Cummins. Giving people long periods of appointment causes two difficulties. When the inspectorate is being established one must see how it goes and there is much trial and error. One does not wish to tie people's hands. However, a long period in inspectorial office results in what is termed "agency capture". The appointee becomes friendly with the agency, begins to understand it and always accepts its explanations. Also, as retired officers from other forces are to be used, they will apply the knowledge they had when they retired. We must ensure new developments in other police forces across the world are also brought to bear. Without wishing to tie the Minister's hands, it would be worthwhile to consider these points in the future.
I thank the Senators for their remarks. It would not be normal for a person to be appointed more than once.
If that is the sentiment and intent expressed by the Minister, we will withdraw the amendment.
Amendment to amendment, by leave, withdrawn.
Amendment No. 2 to amendment No. 123 not moved.
Amendment No. 123 agreed to.
I move amendment No. 124:
In page 67, before section 105, to insert the following new section:
109.—(1) The objective of the Garda Síochána Inspectorate is to ensure that the resources available to the Garda Síochána are used so as to achieve and maintain the highest levels of efficiency and effectiveness in its operation and administration, as measured by reference to the best standards of comparable police services.
(2) The functions of the Inspectorate are—
(a) in furtherance of its objective to carry out, at the request or with the consent of the Minister, inspections or inquiries in relation to any particular aspects of the operation and administration of the Garda Síochána,
(b) to submit to the Minister—
(i) a report on those inspections or inquiries, and
(ii) if required by the Minister, a report on the operation and administration of the Garda Síochána during a specified period and on any significant developments in that regard during that period,
and
(c) to provide advice to the Minister with regard to best policing practice.
(3) Any report prepared under subsection(2)(b)(i) shall, where appropriate, contain recommendations for any action that the Inspectorate considers necessary.
(4) Subject to subsection (4), the Minister shall cause copies of any reports received by him or her under subsection (2)(b) to be laid before the Houses of the Oireachtas.
(5) The Minister may exclude from the copies of reports which are to be laid before the Houses of the Oireachtas any matter which, in his or her opinion—
(a) would be prejudicial to the interests of national security, or
(b) might facilitate the commission of an offence, prejudice a criminal investigation or jeopardise the safety of any person.
(6) The Inspectorate, with the approval of the Minister, may arrange—
(a) with any police service outside the State for the engagement of police officers from that service, or
(b) with any other body for the engagement of other persons, for the provision of consultancy or advisory services in connection with the performance of its functions.
(7) Subject to this Act, the Inspectorate shall be independent in the performance of its functions.".
Subsection (1) of the amendment states the objective of the inspectorate. Subsection (2) sets out the functions of the inspectorate, which include the carrying out of inspections or inquiries with regard to any particular aspect of the operation and administration of the Garda Síochána and the submission of reports to the Minister with regard to such inspections or inquiries. Provision is also made for the Minister to request reports on the operation and administration of the force during any specified period on any developments during such period.
The inspectorate will be able to conduct inspections and inquiries in two types of situations. The first will be as directed by the Minister. The second will follow consultations with the Minister. This latter provision is designed to allow the inspectorate, on its own initiative, identify an area or areas it considers should be examined. Following discussions with the Minister, he or she will agree an inspection, as recommended by the Inspectorate, should take place.
Subsection (3) provides for reports of inspections or inquiries to contain recommendations by the Inspectorate for any action it considers necessary. Subsection (4) requires the Minister to place any reports received from the Inspectorate before the Houses of the Oireachtas. Subsection (5) provides for the Minister to exclude sensitive material in such reports, for example material which could be prejudicial to national security or a criminal investigation, facilitate the commission of an offence or jeopardise the safety of any person.
Subsection (6) provides for the inspectorate, with the approval of the Minister, to engage other persons in connection with the performance of its functions. Subsection (7) provides for the independence of the Inspectorate in carrying out its functions. The reference in the first line of subsection (4) should read "to subsection (5),”. A textual amendment will be made on Report Stage.
I move amendment No. 1 to amendment No. 124:
In subsection (2)(a), after “carry out,” to insert “of its own volition or”.
Earlier we discussed the difference between the ombudsman commission and the inspectorate. We believe the inspectorate should have the power to act without first receiving a complaint. When we previously discussed the issue it was said the ombudsman commission could not do it. This amendment suggests the Inspectorate should have the power to act without first receiving a complaint.
We are also proposing, in subsection (2), to delete "or with the consent". The inspectorate should not require the consent of the Minister when it decides to take action. It should be an independent body, available to but not a servant of the Minister. With regard subsection (3), the inspectorate should be entitled to make recommendations relating to any matter. This section, as proposed, is severely limited.
I am opposed to the first two amendments to the amendment as they are inconsistent with the reason for establishing the inspectorate which has its origins in the first report to the tribunal established under the chairmanship of Mr. Justice Morris to inquire into allegations of Garda corruption in County Donegal. I have brought forward the proposal in light of recommendations of the tribunal that the Department of Justice, Equality and Law Reform, in line with its statutory oversight role with regard to the Garda Síochána, must be empowered by knowledge. The main functions of the inspectorate will be to ensure the Minister and the Department will have objective information on matters relevant to the functioning of the force.
I am sympathetic to amendment No. 3 to the amendment. However, I would like to consider the wording between now and Report Stage in consultation with the Parliamentary Counsel. It would be sufficient to remove the reference to "(i)” thus providing for all reports under subsection 2(b) to contain recommendations.
Amendment to amendment, by leave, withdrawn.
Have we discussed section 106?
We are discussing section 105.
Amendments Nos. 2 and 3 to amendment No. 124 not moved.
Amendment No. 124 agreed to.
Government amendment No. 125:
In page 67, before section 105, to insert the following new section:
110.—(1) As soon as practicable after the commencement of this section the Inspectorate and the Garda Commissioner shall by written protocols, make arrangements to ensure that the Inspectorate receives any information requested by it which is in the possession of the Garda Síochána and which, in the opinion of the Inspectorate, is necessary for the performance of its functions.
(2) Nothing in any other enactment prohibits disclosure of relevant factual information either to or by the Inspectorate.
(3) The Inspectorate, members of its staff, or any persons providing consultancy or other services to it shall not disclose, in or outside the State, other than in accordance with this Act, any information obtained by it or by such members or persons.
(4) A person who contravenessubsection (3) is guilty of an offence and is liable—
(a) on summary conviction, to a fine not exceeding €3,000 or imprisonment for a term not exceeding 12 months or both, or
(b) on conviction on indictment, to a fine not exceeding €50,000 or imprisonment for a term not exceeding 5 years or both.
(5)Subsection (3) is in addition to, and not in substitution for, the relevant provisions of the Official Secrets Act 1963.”.
I move amendment No. 1 to amendment No. 125:
Between subsections (1) and (2), to insert the following new subsection:
"(2) As soon as practicable after the commencement of this section the Inspectorate and the Ombudsman Commission shall by written protocols, make arrangements to ensure that each receives any information requested which is in the possession of either body and which is necessary for the performance of its functions.".
Subsection 1 is designed to place a duty on the Commissioner to co-operate and supply information to the inspectorate when it is exercising its functions. Subsection (2) provides that the inspectorate shall not be prohibited from receiving or disclosing relevant factual information. Subsection (3) prohibits the inspector, staff of the inspectorate or its agents from disclosing information unless it is authorised by the Act. Subsection (4) is a penalty provision for contraventions of subsection (3). Subsection (5) provides that the provisions of subsection (3) are in addition to these set out in the Official Secrets Act 1963.
Amendment to amendment, by leave, withdrawn.
Amendment No. 125 agreed to.
Government amendment No. 126:
In page 67, before section 105, to insert the following new section:
111.—(1) Such funds, premises, facilities, services and staff as may be necessary for the proper functioning of the Garda Síochána Inspectorate shall be provided to it by the Minister with the consent of the Minister for Finance.
(2) The Minister may appoint such and so many persons to be members of the staff of the Inspectorate as he or she considers necessary to assist the Inspectorate in the performance of its functions.
(3) Such persons shall be appointed on such terms and subject to such conditions and shall receive such remuneration as the Minister may, with the consent of the Minister for Finance, determine.".
These are standard provisions relating to the provision of resources by the Minister to facilitate the proper functioning of the inspectorate. It is too early to say what the staffing complement or budget of the inspectorate might be. The precise staffing requirements in the budget will be the subject of discussions with the Department of Finance when the inspectorate is being established. It is anticipated that the administrative support staff will be made available from within the Department's authorised staffing numbers.
While these are standard provisions, I encourage the Minister of State, as I am sure it is his intention, to attract people of high quality into the inspectorate and to ensure that they have the necessary resources to do the job. Otherwise, it will not be effective.
I assure the Senator that is the intention.
Amendment agreed to.
Government amendment No. 127:
In page 67, before section 105, to insert the following new section:
112.—(1) The Chief Inspector shall, at the written request of a committee of either or both of the Houses of the Oireachtas (other than the Committee of Public Accounts) in connection with the subject matter of any report of which copies were laid before those Houses under section 109(3), attend before it in relation to any aspect of that matter.
(2) In carrying out his or her duties under this section, the Chief Inspector shall not—
(a) question or express an opinion on the merits of any policy of the Government or a Minister of the Government or on the merits or objectives of such policy, or
(b) provide information that might facilitate the commission of an offence, prejudice a criminal investigation or jeopardise the safety of any person.”.
The inspectorate will be amenable to testify before an Oireachtas committee. Accordingly, subsection (1) provides for the appearance of the chief inspector before such a committee. However, it is not a general provision in the sense that it is limited to a matter that is covered in a report laid before the Houses of the Oireachtas in accordance with the provisions of section 109(2)(b).
Subsection (2) is a standard provision in such cases. It will prevent the chief inspector from commenting on the merits or objectives of Government policy before an Oireachtas committee or providing information that might facilitate the commission of a crime, etc.
A footnote to that amendment refers to section 109(3) in subsection (1).
Amendment agreed to.
Section 105 agreed to.
SECTION 106.
Government amendment No. 128:
In page 68, between lines 32 and 33, to insert the following subsection:
"(2) Regulations undersubsection (1)(i) shall include provision for the establishment of promotion boards comprising 3 members, one of whom (but not the chairperson) shall be a member of the Garda Síochána.”.
This amendment will allow for changes to be made in the arrangements for the establishment of Garda promotion boards. It achieves this by allowing the Minister, after consultation with the Garda Commissioner and with the approval of the Government, to make appropriate provision by means of regulations under section 106.
Does this section not seem to politicise the Garda Síochána? This section and the amendment proposed to it gives power to the Minister to play a hands-on role in the operation of the Garda Síochána. Subsection (1)(a) provides that the Minister will have a say, after consulting with the Garda Commissioner and the Government, on the different ranks into which the members of the Garda Síochána are to be divided. The Minister will have a say in the admission, appointment and enrolment of members. Subsection (1)(i) provides that the Minister will have a say in the promotion of members.
Legislation was recently passed which provides for the Minister to make appointments up to the rank of Commissioner. One could take from a reading of this section and from what the Minister of State said in regard to the amendment that the Minister, after consulting the Garda Commissioner and the Government, can have a say in the promotion of members of the Garda Síochána.
Will the Minister of State give us a briefing on this issue? Is that the case? I do not believe anybody would want the Minister of the day irrespective of what party he or she is a member, to have a political say in promotions of members of the force, in the admission, appointment and enrolment of members or of the rank into which the members of the Garda Síochána are to be divided. Will the Minister of State explain this amendment and section?
The opposite is the case. The intent of this amendment is to ensure greater transparency in Garda promotions. Before changes can be made, the Garda Commissioner must be consulted. The section also covers promotions outside the force. It is to ensure greater transparency in this regard.
It is difficult to see how it will ensure greater transparency because I do not believe the Minister of the day had any say in the promotion of members of the Garda Síochána to the rank of Garda sergeant or superintendent. However, this section and the proposed amendment to it provides that the Minister, after consultation with the Commissioner, could have a say in the promotion of a member of the Garda Síochána at all ranks. If that is the case, we will have to reconsider this section.
That point did occur to me, but I understand the concern expressed by the Senator. A distinction needs to be made between the provision of regulations to enable something to be done and the involvement of a Minister in that activity. There is no suggestion of that, but it would be improper for a Minister of any party to have a say in that process. It may be possible by the introduction of word in the section to the effect that the Minister may in general make regulations, but that it should be made clear that there is no intention to give power to any Minister to interfere in the day-to-day operation of the regulations.
As Senator Maurice Hayes said, it is important that the Minister, who is ultimately accountable to the Houses of the Oireachtas, would be in a position to make regulations. It does not follow that he or she would decide on the individual promotions within the force.
The amendment provides for the setting up of promotion boards consisting of three members, one of whom shall be a member of the Garda Síochána. I had great misgivings about the Local Appointments Commission operating in the public service and particularly at local authority level. It was open to influence and I heard about that in many instances from county managers through their colleagues who were on the various interview panels.
There is also the question of promoting a person almost exclusively on the basis of an interview. Some people can perform well at interviews while some can get into a state and not perform well. I have seen many people promoted to positions way out of their depth and, unfortunately, in the public service we are stuck with such people. It is not fair to them because they are not capable of doing the job. They are under pressure and stressed if they are interested. If they are not interested they are just waiting to retire.
There is no way promotions would be made in the private sector exclusively on the basis of an interview. The interview would be part of the decision-making process. We need to consider such a process in the public service. The Garda Síochána is such an important arm of the State that it is imperative that people who have the ability to do the job well come through whatever process is there. That process should be transparent and independent, but it should be robust enough to get the right people through.
Interview boards can carry political correctness to extremes and the person who shines at the interview is appointed. Subsequently it is discovered that the person should not have been allowed near the post to which he or she has been appointed. This has happened at local government level. Seeing it in black and white regarding the Garda prompts me to make the point. I see other people who have been involved in local government nodding in agreement. It has happened at local government and I have no doubt it happens throughout the public service.
I appreciate the concerns of Senators. Garda promotions are covered by regulations. The new provision will be the same. The new rules have more to do with the new system of promotion in order to have input into the system by outside professionals. At the moment the system is mainly an internal Garda one. The Minister wishes to introduce greater transparency into the process. That is the intention behind this legislation.
Senator Walsh makes a very good point. The making of appointments under Better Local Government has been a disaster from many points of view. It has divided local authority staff as between people who were promoted and people who were not. People believe the promotions were in no way transparent.
Will the promotion boards be set up on an area basis or on a national basis? Will there be a separate promotion board for each rank or one board for the entire membership of the Garda Síochána, given that there are only 10,000 members and I do not know how many promotions? Whatever is done should be transparent because we need a force that works for the betterment of the community. We would not want a force that is divided, as are the staff in many local authorities. We can do without that, particularly in the Garda Síochána. The Minister should tread very carefully regarding the membership of promotion boards, how many there will be and from where their personnel come.
I will bring the concerns of Senators to the Minister's attention.
Amendment agreed to.
Question proposed: "That section 106, as amended, stand part of the Bill."
The Minister recently increased the age threshold for entry to the Garda Síochána. I understand that the retirement age is 57 and that gardaí with a minimum of 30 years service are eligible for a full pension. Increasing the threshold for entry means that somebody who has entered the Garda Síochána at 30 years of age will have only 27 years service and will not, therefore, be entitled to the maximum pension. Is it the Minister's intention to waive the extra three or four years? Will the members in question get a reduced pension or will they have the right to buy out the years they need to be eligible for the maximum pension? This would be of concern to people entering the force at an advanced stage in their life.
The Minister is right to change the age threshold. I am sure Senator Burke would agree. Many people suggested that he do so. Whether people continue in the force beyond the age of 57 years would have to be decided on an individual basis. It would depend on the ability of the garda to carry out his or her functions at that age. Some people aged 57 would be in a position to do so, but others would not.
Public service pensions, of which we in the Houses are also beneficiaries, could not be bought in the private sector. I am not sure that it should be open to somebody entering the force at the age of 30 or 35 to buy back years. Somebody coming into the force at that age is likely to have already been in employment for ten or 15 years and would have accumulated certain pension benefits which would be taken into account to make up any shortfall in the public service pension.
There is an issue and a major black hole regarding public service pensions and pensions generally. The previous Minister for Finance had begun to address the issue. As we go forward it will become a bigger issue. I am not sure we should dig the hole deeper without good reason.
Is there any required level of physical fitness for gardaí? There are some gardaí from whom, even at my age, I could get away in the event of a chase.
I will not respond to the last comment. I appreciate Senator Burke's point. However, I do not have an answer. The Senator will have the opportunity to ask that question of the Minister for Justice, Equality and Law Reform, Deputy McDowell, on Report Stage.
I appreciate that. The Minister made great play of the fact that he was increasing the age limit and I thoroughly agree with him. However, members of the Garda Síochána must resign on reaching the age of 57. If people who have reached the age of 30 have entered the Garda Síochána and served 27 years, the Minister will have no choice but to let them serve until they are 60 so that they can reach the maximum pension. We cannot deprive people of the maximum pension rights. This issue should be resolved before this Bill is passed because these people are entitled to the maximum pension. We cannot raise the entry age for whatever good reason and allow people into the public service and deprive them of the right to the maximum pension. There is good reason to either raise the age of retirement or make the maximum pension available in whatever way it is possible to do so.
The Senator will have an opportunity to return to this point. I do not have an answer tonight. I will make the Senator's reservations known to the Minister.
May I take it that the Minister will come back on Report Stage with an explanation regarding the points made by Senator Burke?
The Senator may take it that the Minister will come back to him but perhaps not with the answer he wants.
We are quite used to that.
Question put and agreed to.
Sections 107 to 113, inclusive, agreed to.
SECTION 114.
Question proposed: "That section 114 stand part of the Bill."
This section deals with security officers. From my reading, it envisages that security officers may be conferred with powers akin to a garda, to which I am opposed. I have stated on other sections of the Bill that only persons who have completed full Garda training should be conferred with Garda powers and that this should be the standard. I oppose powers such as these being conferred on security officers who have not had the proper training. The Minister seems intent in this section on diluting the authority of gardaí.
The Minister was specific and I welcome this positive provision. Given the talk about releasing gardaí for more effective work, this is a positive move. Throughout the public service, value for money is a major issue but gardaí are tied up in these locations which relate to specified State operations. It is appropriate, therefore, that if the Minister in conjunction with these bodies feels that an alternative security system as effective as Garda security can be put in place and that powers can be conferred on the officers involved, it is a step in the right direction.
This is the kind of measure for which many Members argued in the House and some went further and stated in regard to traffic enforcement that it could be carried out, for example, by local authority personnel in the same way that rangers operate in the United States. There are other ways of considering these matters. I appreciate that in the case of traffic enforcement the Minister has decided to use gardaí, for which there were probably good reasons. However, in this instance gardaí are standing around in bodies where there might not be a problem for years but which need to be secured because they have important public State functions. It is appropriate that other staff can be recruited by those bodies who would carry out the required security function.
I have concerns with the provision. A major aspect of the Bill is to give people the ability to make a complaint about gardaí. These new powers are given to officers in the locations outlined who are not gardaí. If a person feels his or her rights have been infringed by such officers, what should he or she do? The Bill appears to give substantial powers of search and so on to those designated officers under the section. A person might feel he or she has been wrongly suspected, that the provisions of the section have been wrongly applied or that his or her civil rights have been infringed. In what way does the Bill provide for a grievance procedure?
I am not suggesting civilians should not do jobs within Garda stations. However, the Minister seems to be moving from designating security officers to a voluntary force. Giving powers to those such as security officers, as they are described in the Bill, is to dilute the status of the Garda Síochána. Reference is made to security officers and a possible voluntary force with Garda powers. We are taking powers from the Garda and giving them to others, a move with which I am not in favour. Such officers should be properly and fully trained, as a garda would be, if they are to attain the powers of a garda.
I agree with Senator Jim Walsh. Many gardaí are tied up through working in locations such as court buildings, and are over-trained for this work. I disagree with Senator Cummins. At a time when more gardaí are needed on the streets doing the work they are trained for, it would be wise to adopt this measure.
The Minister should deal with the point made by Senator Tuffy. I take the point of enabling the officers to do these jobs without tying up gardaí. However, there is the narrow point that if a citizen has a complaint about how they are being handled, to whom does he or she complain?
The positions are static security posts in State buildings. Every such post requires five persons to meet the commitment. We are speaking of specific locations, namely, the Courts Service, a Department of State, the Office of the Attorney General, the Houses of the Oireachtas Commission, the National Gallery of Ireland and the board of the National Museum of Ireland. The Minister is specific in the section that "the person is a suitable person to exercise the powers of a security officer under this section in relation to specified premises [and]... the person has received adequate training for that purpose".
Section 114 provides a statutory basis for State bodies to provide their own security. The Minister may designate the bodies listed as authorised bodies for the purposes of the section. Authorised bodies may specify their operational premises and designate named individuals to be security officers for the purpose of that body's property. Security officers in carrying out their duties may exercise any of the powers set out in subsection (4) or subsection (5), but must be identifiable by means of a badge or uniform, and the powers are exercised in accordance with any general or special instruction of the person who designated them. Subsection (4) provides for the powers of security officers. Subsection (5) provides for the additional powers of security officers of the Courts Service when acting on the oral direction of a judge. Subsection (6) provides that unless the court has ordered that a person taken into custody under subsection (5)(b) be committed to prison or be released, the person shall be brought by the security officer concerned, if still in his or her custody, or a member of the Garda Síochána, if already delivered into the custody of gardaí, to the court for it to deal with the matter.
A security officer may use reasonable force in carrying out his or her duties under subsections (5) and (6). Subsection (8) provides that powers conferred under this section do not authorise a security officer to require a person to remove clothing other than outer garments or to read any document that would be exempt from production in any court proceedings on the ground of legal professional privilege. Subsection (9) provides that this section does not affect any power of arrest conferred by law, including the power conferred under section 4 of the Criminal Law Act 1997.
While six agencies have been identified, the Minister might clarify whether gardaí are utilised for this kind of duty in other bodies when better deployment of their skills and time is possible. Will the Minister consider the extension of the list prior to Report Stage?
The Minister referred to the powers of security officers. I presume they have powers of arrest. I think particularly of the National Gallery or the National Museum where there might be nefarious activities. It would be important that the powers of gardaí would be replicated in the security officers within the confines of a particular location. Will the Minister clarify this? While I support the idea, one matter that concerns me somewhat relates to the Courts Service, which involves the District and Circuit Courts. In such places, a Garda presence is often required for the maintenance of law and order.
Progress reported; Committee to sit again.
When is it proposed to sit again?
The Seanad adjourned at 10 p.m. until10.30 a.m. on Wednesday, 15 December 2004.
