I welcome the Minister of State at the Department of Justice and Equality, Deputy Aodhán Ó Ríordáin. I remind Senators that a Senator may speak only once on Report Stage, except for the proposer of an amendment who may reply to the discussion on that amendment. On Report Stage, each amendment must be seconded. Amendments Nos. 1 and 2 are related and may be discussed together.
Garda Síochána (Policing Authority and Miscellaneous Provisions) Bill 2015: Report and Final Stages
I move amendment No. 1:
In page 7, line 15, to delete “the Minister” and substitute “a member of the judiciary, as delegated by the Chief Justice”.
Cuirim fáilte roimh an Aire Stáit. Phlémar an Bille seo ag Céim an Choiste agus dúramar go rabhamar ag iarraidh leasaithe a thabhairt chun cinn. On amendments Nos. 1 and 2, we believe that in the interests of independence and to avoid a conflict of interest, the Minister should not have the final say as to what constitute security services and policing services. As one of the parties with control over one of the two services, the Minister, having the power to decide and the final say on the difference between security and policing, would face a conflict of interest. Therefore, we believe the legislation should be amended to allow for an independent member of the Judiciary, appointed by the Chief Justice, to decide on what constitutes security and policing.
I second the amendment.
As the Deputy will be aware, the role of the policing authority will be to oversee the performance by An Garda Síochána of its functions relating to policing services. An Garda Síochána is also the security service for the State and the Garda Commissioner will continue to be accountable to the Government in respect of national security. This is, I understand, generally in line with a broad consensus within this House that security matters should not be within the remit of the authority. The Bill provides that, in the event of a disagreement between the authority and the Garda Commissioner, the Minister will decide whether a matter is a policing matter or a security matter. The Minister has considered the amendments carefully and she is of the view that, given that the security of the State is a priority function of the Government, the task of deciding whether an item relates to policing or security matters should be undertaken by the Minister for Justice and Equality in her or his capacity as a member of the Government.
Overall, it is important to bear in mind that the Bill contains a definition of what constitutes security services in order that the scope of the authority's remit can be properly delineated. Under proposed section 44, the authority will, in performing its functions, have regard to the importance of the functions of An Garda Síochána concerning security services. In the circumstances, the Minister believes the scope for disagreements between the authority and the Garda Commissioner as to whether a particular item is a security matter or a policing matter will be quite limited. In addition, discussions to resolve any difficulty will undoubtedly take place between the authority and the Garda Commissioner before any issue is referred to the Minister. Moreover, the Minister has asked me to emphasise that, before making any decision as to whether a policing matter or security matter is involved, a Minister will be required to act impartially. As Senators will be aware, a number of important security related matters are already dealt with by the Minister, including authorising the interception of communications.
I also understand the approach adopted in the Bill is in line with similar arrangements that have been made in Northern Ireland and Scotland regarding security matters. In the circumstances, the Minister considers that the measures for dealing with the relevant concerns in the Bill are appropriate. Accordingly, I ask the Senator not to press the amendments.
It is quite clear that we are not at one on this amendment. We will be pressing it.
Amendment put and declared lost.
I move amendment No. 2:
In page 7, line 16, to delete “Minister” and substitute “member of the judiciary”.
I second the amendment.
Amendment put and declared lost.
Amendments Nos. 3 and 87 are related and may be discussed together.
Government amendment No. 3:
In page 7, line 35, to delete “enactment specified in the Schedule is repealed” and substitute “enactments specified in the Schedule are repealed”.
The purpose of the amendments is to provide for the repeal of existing legislative provisions relating to An Garda Síochána that are now spent. This is a tidying-up exercise that has been undertaken in conjunction with the Office of the Parliamentary Counsel.
Amendment agreed to.
Amendments Nos. 4 to 56, inclusive, and Nos. 70, 72 and 73 are related and may be discussed together.
I move amendment No. 4:
In page 8, lines 7 and 8, to delete “shall, upon the nomination of the Authority, be made by the Government” and substitute “shall be made by the Authority”.
Amendments Nos. 4 to 45, inclusive, are in line with the need for the authority to be truly independent. The Minister should not be permitted to appoint the Garda Commissioner or the deputy Garda commissioner. The role of the authority under this Bill in recommending the appointment is not strong enough. Sinn Féin would amend the legislation in this regard to allow for the authority to appoint the Garda Commissioner and the deputy Garda commissioner directly. If the Garda Commissioner is to be accountable to the authority, the authority needs to have effective powers and mechanisms to oversee the appointment and removal of the Garda Commissioner. The same must be true for the removal of senior rank officers. There is a need for the authority to have the power to appoint directly and remove ranks from superintendent up. Sinn Féin is seeking to amend the Bill to provide for this.
In the Bill it is specifically stated the Minister is responsible for security matters. If so, there is no reason for the Minister also to have the power to initiate and oversee inquiries into policing matters. This is a role for the authority alone and we seek to amend the Bill to give this power to it.
I second the amendment.
Senator Trevor Ó Clochartaigh has already outlined the purpose and scope of his amendments and I do not propose to cover the same ground in detail. The effect of the amendments would be, in particular, to remove from the Government, the Minister for Justice and Equality in particular, any role in the appointment or dismissal of members of An Garda Síochána. Obviously, the main area of attention with regard to the Senator's amendments must be his proposals in respect of the most senior Garda ranks, and my response will focus primarily on those ranks.
Before discussing the proposals on the appointment and dismissal of senior Garda personnel, however, it is crucial to bear in mind that there are a number of very significant contextual matters that must be fully taken into account. The first and most important of these matters is that, in this jurisdiction, all our legislation must be fully compatible with the Constitution. The last thing any Member of this House would wish is a serious constitutional question mark hanging over any legislation. In that connection, I draw the attention of Senators to Article 28.2 of the Constitution which specifically provides for the Executive power of the State to be exercised by or on the authority of the Government.
In the course of the drafting of the Bill senior counsel provided legal advice for the Office of the Attorney General on the applicability of Article 28.2 with regard to legislative proposals which were being considered for inclusion in the Bill. This was a process in which written legal advices were supplied and in them senior counsel indicated clearly that, as a matter of custom, practice and proper constitutional interpretation, the function of An Garda Síochána in the exercise of the policing power of the State has been interpreted by the courts as a function that is exercised as part of the Executive power of the State. In that regard, while the senior counsel acknowledged that an Executive power of the Government under Article 28.2 could be delegated, he also stated it would not be constitutionally permissible for such a delegation to amount to an abdication of the Government's Executive power.
Within this framework senior counsel specifically referred to the appointment and dismissal of the Garda Commissioner and his conclusion was that any legislative proposal related to the establishment of a policing authority should preserve, ultimately, the power of the Government to appoint or dismiss the Garda Commissioner. As Senators will appreciate, to address the relevant constitutional concerns, the advice of senior counsel is reflected in the provisions of the Bill. Given the importance of their functions, a similar approach has been adopted in the case of deputy commissioners.
When considering the Senators' amendments, it is also necessary to take account of the fact that An Garda Síochána is a security service for the State. Senators will be aware that under the Bill the Garda Commissioner will continue to be accountable to the Government in respect of national security. This is an approach that has a wide measure of support within the Oireachtas. It goes without saying that national security is a key function of the Government. The Minister's view, leaving aside the very clear constitutional dimension involved, is that the appointment of the head of the national security service should be undertaken by a body other than the Government. To put the matter at its simplest, in view of the functions involved, the final appointing decision must rest with the Government. For similar reasons, the Minister is satisfied that the Government must continue to have the capacity to remove senior Garda members on security grounds.
While there are other issues I might raise regarding the Senators' amendments, at this juncture I should concentrate on the functions being conferred on the policing authority by the Bill in the appointment and removal of Garda personnel. Under the Bill, the authority will have a leading role in determining a large body of Garda appointments. This will operate, in particular, at the very highest levels of the Garda organisation and the authority will also have general functions in Garda appointments and promotions. With regard to the Garda Commissioner or a deputy commissioner, all future appointments to these posts will be made solely on the basis of a nomination made by the policing authority, following a selection process undertaken by the Public Appointments Service. In exceptional circumstances, where the Government is unable for significant reasons to accept a nomination made by the authority, it will have to state its reasons. Where this occurs the Government will be obliged to ask the authority to nominate another person for the position.
From an international perspective, it is very much the general practice that governments either make or must approve top level police appointments. For example, while the Chief Constable is appointed by the Northern Ireland Policing Board, the appointment must be approved by the Northern Ireland Minister for Justice. Similar arrangements are in place in Scotland where a police authority has recently been established. In the case of Garda personnel, between the ranks of superintendent and assistant commissioner, the Bill provides that all appointments will be made directly by the policing authority. Additionally, the authority will appoint persons to positions within the Garda civilian staff which are equivalent to or above the rank of chief superintendent.
Regarding dismissals and in line with the constitutional and security principles I have outlined, the Garda Commissioner or a deputy commissioner will be removed by the Government. At the same time, the policing authority will have the power to recommend to the Government that a Garda Commissioner or a deputy commissioner be removed for policing reasons. While the Government will not be obliged to adopt such a recommendation, it is very difficult to envisage circumstances in which it would not do so. Dismissals of persons between the ranks of superintendent and assistant commissioner for policing reasons will be undertaken by the authority. It will also be able to suspend a person from duty in advance of a removal decision.
While the Senators' amendments would go beyond the appointment and dismissal of Garda personnel, the Minister wishes to make it clear that the overall approach adopted to the Bill by the Government is that relevant functions should be transferred from the Government and the Minister to the policing authority where this is permissible and appropriate. However, the transfer process has its limitations and has to be undertaken against the general constitutional and policy backgrounds I have highlighted. Within these frameworks the Minister could not accept a situation, as proposed in the amendments, where the Minister for Justice and Equality, for substantial legal and policy reasons, and the Minister for Public Expenditure and Reform, for budgetary reasons, would not be involved in determining the numbers of persons to be appointed to senior Garda ranks.
Overall, the Minister appreciates that the approach of the Senators in the amendments is to remove what they perceive to be a system in which key elements could be the subject of political considerations. However, as I have indicated, the Minister believes the significant reforms and measures provided for in the Bill are fully adequate to address concerns they might reasonably have. In particular, substantial powers are being conferred on the new policing authority which will be independent in the exercise of its functions.
Before I conclude on these amendments, I reiterate the earlier statement made by the Minister in the House that the proposals made in the Bill for the establishment of the independent policing authority will play a vital role in ensuring public confidence is maintained in An Garda Síochána and the essential services it provides. Moreover, as I have indicated, they have been developed to address very important constitutional and policy requirements that arise within both the policing and security areas. Unfortunately, for the reasons I have given, the amendments do not meet these requirements and as such the Minister is not in a position to accept them. Accordingly, I ask the Senators not to press them.
The amendments were brought forward to ensure the absolute independence of the policing authority in the exercise of its functions. They seek to remove ministerial interference from the functions of the authority in each place they are provided for. There should be no need for the authority to seek the consent or approval of the Minister at every turn. Such limitations only restrict the effectiveness of the oversight of the authority. Without our amendments the Bill only creates a middle-man structure, in which the authority will function at the behest of the Minister of the day. This is not true reform but the creation of a puppet body that will have little impact on the oversight of An Garda Síochána. We cannot have a situation where the Minister will control every move made by the authority. We have had ministerial control over gardaí before and all know how that turned out. What we need is true independence. The authority must be a separate arm of the system and not subject to ministerial order. It should not be accountable to the Minister. That is what the amendments aim to achieve.
In line with the need for the policing authority to be truly independent, the Minister should not be permitted to appoint the Garda Commissioner or deputy commissioners. The role of the authority under the Bill, in recommending people for appointment, is not strong enough. Sinn Féin wants to amend this provision to allow the authority to directly appoint the Garda Commissioner and deputy commissioners. If the Garda Commissioner is to be accountable to the authority, the authority needs to have effective power mechanisms to oversee the appointment and removal of the Garda Commissioner. The same must be true in the removal of officers of senior rank. That is why we are seeking to amend the Bill and will press the amendments.
Amendment put and declared lost.
I move amendment No. 5:
In page 8, line 9, to delete “nominate” and substitute “appoint”.
I second the amendment.
Amendment put and declared lost.
I move amendment No. 6:
In page 8, line 10, to delete “, with the prior approval in writing of the Government,”.
I second the amendment.
Amendment put and declared lost.
I move amendment No. 7:
In page 8, line 13, to delete “, with the approval of the Minister,”.
I second the amendment.
Amendment put and declared lost.
Government amendment No. 8:
In page 8, line 14, to delete “selection criteria and process that are to apply to the” and substitute the following:
“requirements relating to knowledge, ability and suitability for appointment as the Garda Commissioner for the purposes of a”.
Amendment agreed to.
I move amendment No. 9:
In page 8, line 16, to delete “nominated” and substitute “appointed”.
I second the amendment.
Amendment put and declared lost
I move amendment No. 10:
In page 8, line 24, to delete “nomination” and substitute “appointment”.
I second the amendment.
Amendment put and declared lost.
I move amendment No. 11:
In page 8, lines 24 and 25, to delete “for appointment”.
I second the amendment.
Amendment put and declared lost.
I move amendment No. 12:
In page 8, to delete lines 26 to 40.
I second the amendment.
Amendment put and declared lost.
I move amendment No. 13:
In page 9, line 2, to delete “Minister” and substitute “Authority”.
I second the amendment.
Amendment put and declared lost.
I move amendment No. 14:
In page 9, line 3, to delete “Minister” and substitute “Authority”.
I second the amendment.
Amendment put and declared lost.
I move amendment No. 15:
In page 9, line 4, to delete “Minister” and substitute “Authority”.
I second the amendment.
Amendment put and declared lost.
I move amendment No. 16:
In page 9, line 6, to delete “The Government shall, as soon as may be, inform the Authority” and substitute “The Authority shall, as soon as may be, inform the Government”.
I second the amendment.
Amendment put and declared lost.
I move amendment No. 17:
In page 9, line 15, to delete “Government” and substitute “Authority”.
I second the amendment.
Amendment put and declared lost.
I move amendment No. 18:
In page 9, lines 17 and 18, to delete “, upon the nomination of the Authority, be made by the Government” and substitute “be made by the Authority”.
I second the amendment.
Amendment put and declared lost.
I move amendment No. 19:
In page 9, line 19, to delete “nominate” and substitute “appoint”.
I second the amendment.
Amendment put and declared lost.
I move amendment No. 20:
In page 9, line 20, to delete “, with the prior approval in writing of the Government,”.
I second the amendment.
Amendment put and declared lost.
I move amendment No. 21:
In page 9, line 23, to delete “, with the approval of the Minister,”.
I second the amendment.
Amendment put and declared lost.
Government amendment No. 22:
In page 9, line 24, to delete “selection criteria and process that are to apply to the” and substitute the following:
“requirements relating to knowledge, ability and suitability for appointment to the rank of Deputy Garda Commissioner for the purposes of a”.
Amendment agreed to.
I move amendment No. 23:
In page 9, line 26, to delete “nominated” and substitute “appointed”.
I second the amendment.
Amendment put and declared lost.
I move amendment No. 24:
In page 9, lines 34 and 35, to delete “nomination by the Authority under subsection (1) for appointment” and substitute “appointment”.
I second the amendment.
Amendment put and declared lost.
I move amendment No. 25:
In page 9, to delete lines 36 to 42, and in page 10, to delete lines 1 to 8.
I second the amendment.
Amendment put and declared lost.
I move amendment No. 26:
In page 10, line 10, to delete “Minister” and substitute “Authority”.
I second the amendment.
Amendment put and declared lost.
I move amendment No. 27:
In page 10, line 11, to delete “Minister” and substitute “Authority”.
I second the amendment.
Amendment put and declared lost.
I move amendment No. 28:
In page 10, line 12, to delete “Minister” and substitute “Authority”.
I second the amendment.
Amendment put and declared lost.
I move amendment No. 29:
In page 10, line 14, to delete “The Government shall, as soon as may be, inform the Authority” and substitute “The Authority shall, as soon as may be, inform the Government”.
I second the amendment.
Amendment put and declared lost.
I move amendment No. 30:
In page 10, line 25, to delete “or Deputy Garda Commissioner” and substitute “, Deputy Garda Commissioner, Assistant Garda Commissioner, chief superintendent or superintendent”.
I second the amendment.
Amendment put and declared lost.
I move amendment No. 31:
In page 10, line 26, to delete “Government” and substitute “Authority”.
I second the amendment.
Amendment put and declared lost.
I move amendment No. 32:
In page 10, line 36, to delete “Government” and substitute “Authority”.
I second the amendment.
Amendment put and declared lost.
I move amendment No. 33:
In page 10, to delete lines 37 to 41, and in page 11, to delete lines 1 to 23.
I second the amendment.
Amendment put and declared lost.
I move amendment No. 34:
In page 11, line 24, to delete “or 13A(1)(a)”.
I second the amendment.
Amendment put and declared lost.
I move amendment No. 35:
In page 11, lines 27 and 28, to delete “Government or the Authority, as the case may be,” and substitute “Authority”.
I second the amendment.
Amendment put and declared lost.
I move amendment No. 36:
In page 11, line 29, to delete “Government or the Authority, as the case may be,” and substitute “Authority”.
I second the amendment.
Amendment put and declared lost.
I move amendment No. 37:
In page 11, line 31, to delete “subsection (5)” and substitute “subsection (2)”.
I second the amendment.
Amendment put and declared lost.
I move amendment No. 38:
In page 11, line 32, to delete “Government or the Authority, as the case may be,” and substitute “Authority”.
I second the amendment.
Amendment put and declared lost.
I move amendment No. 39:
In page 11, line 34, to delete “or 13A”.
I second the amendment.
Amendment put and declared lost.
I move amendment No. 40:
In page 11, lines 36 and 37, to delete “Subject to subsection (8), the Government shall, as soon as may be, inform the Authority” and substitute “The Authority shall, as soon as may be, inform the Minister”.
I second the amendment.
Amendment put and declared lost.
I move amendment No. 41:
In page 11, lines 38 and 39, to delete “subsection (1) or (4) and any related suspension from duty under subsection (5)” and substitute “subsection (1) and any related suspension from duty under subsection (2)”.
I second the amendment.
Amendment put and declared lost.
I move amendment No. 42:
In page 11, to delete lines 40 to 43, and in page 12, to delete lines 1 to 5.
I second the amendment.
Amendment put and declared lost.
I move amendment No. 43:
In page 12, line 7, after “of” to insert “Garda Commissioner, Deputy Garda Commissioner,”.
I second the amendment.
Amendment put and declared lost.
I move amendment No. 44:
In page 12, lines 13 and 14, to delete “and 13A (inserted by section 13)”.
I second the amendment.
Amendment put and declared lost.
I move amendment No. 45:
In page 12, line 16, after “of” to insert “Garda Commissioner, Deputy Garda Commissioner,”.
I second the amendment.
Amendment put and declared lost.
I move amendment No. 46:
In page 12, line 23, to delete “or (4) of section 11, the Government” and substitute “of section 11, the Authority”.
I second the amendment.
Amendment put and declared lost.
I move amendment No. 47:
In page 12, line 24, to delete “Government” and substitute “Authority”.
I second the amendment.
Amendment put and declared lost.
I move amendment No. 48:
In page 12, to delete lines 29 to 40 and substitute the following:
“(b) by substituting the following for subsection (2):
“(2) The Authority may, if they consider it necessary or appropriate to do so, appoint a person to—
(a) hold an inquiry into any matter giving rise to a notification under subsection (1), and
(b) report to the Authority on the findings of the inquiry.”,”.
I second the amendment.
Amendment put and declared lost.
I move amendment No. 49:
In page 12, between lines 40 and 41, to insert the following:
“(c) by substituting the following for subsection (6):
“(6) If an inquiry is held, the Authority shall—
(a) consider the report on the findings of the inquiry,
(b) inform the Minister of the findings of the inquiry,
(c) make a copy of the report available to the person whose removal from office is the subject of the report, and
(d) give that person an opportunity to make representations relating to the report.”,”.
I second the amendment.
Amendment put and declared lost.
I move amendment No. 50:
In page 13, to delete lines 6 and 7.
I second the amendment.
Amendment put and declared lost.
I move amendment No. 51:
In page 13, line 12, to delete “Minister” where it firstly occurs and substitute “Authority”.
I second the amendment.
Amendment put and declared lost.
I move amendment No. 52:
In page 13, line 24, to delete “subsections (3) to (9) of”.
I second the amendment.
Amendment put and declared lost.
I move amendment No. 53:
In page 13, to delete lines 28 to 40, to delete page 14, and in page 15, to delete lines 1 to 17.
I second the amendment.
Amendment put and declared lost.
I move amendment No. 54:
In page 15, between lines 18 and 19, to insert the following:
“(1) Section 14(1) of the Principal Act is amended by the substitution of the following subsection for subsection (1) as follows:
“(1) The Garda Commissioner may appoint, subject to and in accordance with the regulations, and subject to oversight by the Authority, such numbers of persons as he or she sees fit to the ranks of garda, sergeant and inspector in the Garda Síochána.”.”.
I second the amendment.
Amendment put and declared lost.
I move amendment No. 55:
In page 17, lines 7 and 8, to delete “with the consent of the Minister”.
I second the amendment.
Amendment put and declared lost.
I move amendment No. 56:
In page 17, line 10, to delete “with the consent of the Minister”.
I second the amendment.
Amendment put and declared lost.
Amendments Nos. 57 to 62, inclusive, are related and may be discussed together.
I move amendment No. 57:
In page 17, lines 21 and 22, to delete “and with the approval of the Minister”.
These amendments are proposed in order that the Minister's approval for setting the priorities of An Garda Síochána is not required. We believe the authority should be independent in its functions and responsible for this oversight. This amendment and amendments Nos. 58 to 62, inclusive, would remove the requirement for the Minister's consent.
I second the amendment.
Under the Bill, the policing authority will oversee the exercise of An Garda Síochána's policing functions. As I have outlined to the House under earlier amendments, the drafting of the Bill has proceeded in conjunction with ongoing legal advice provided by senior counsel to the Office of the Attorney General. This was done to ensure the functions of the authority would be fully consistent with the exercise by the Government of the executive power of the State under Article 28.2 of the Constitution.
As I have indicated, in practical terms, there are constitutional limitations on the extent to which it is open to the Oireachtas, by way of legislation, to delegate the Government's ultimate power over policing to another body. A key element of the approach the Government has been advised and legally compelled to adopt is to avoid any suggestion the ultimate capacity of the Government to intervene in the policing sphere might be unconstitutionally restricted.
The three areas covered by the Senator's amendments are the setting of priorities for policing within the State, the approval of the three-yearly strategy statement for the Garda organisation and the adoption of the annual Garda policing plan.
For the purpose of addressing the amendments, I do not propose to enter into a detailed discussion of what is involved in each of these areas. However, it is clear, on any analysis, that we are talking about a set of very significant functions. The setting of priorities for An Garda Síochána is a matter of the highest importance in determining how gardaí operate in carrying out their functions throughout the country. These priorities, in turn, feed into Garda strategy statements and annual policing plans which play a vital role in directing gardaí. Furthermore, they are pivotal in terms of the allocation of financial and other resources throughout the Garda organisation.
In view of the importance of the functions involved and on the basis of legal advice provided by senior counsel, the Minister is satisfied that it would not be appropriate for final decisions to be taken by the policing authority in the matters covered by the Senator's amendments. For that reason, the Bill provides that the areas in question will be subject to a co-decision procedure with the authority, which will involve approval being given by the Minister. In the circumstances, the Minister considers the approach adopted in the Bill to be the correct one. Moreover, it is my understanding that similar arrangements apply in other jurisdictions, including Northern Ireland and Scotland. Accordingly, the Minister is not in a position to accept the amendments.
Amendment put and declared lost.
I move amendment No. 58:
In page 17, to delete lines 32 to 34.
I second the amendment.
Amendment put and declared lost.
I move amendment No. 59:
In page 19, line 24, to delete ", with the consent of the Minister,".
I second the amendment.
Amendment put and declared lost.
I move amendment No. 60:
In page 19, lines 27 and 28, to delete "with the consent of the Minister".
I second the amendment.
Amendment put and declared lost.
I move amendment No. 61:
In page 20, line 14, to delete ", with the consent of the Minister,".
I second the amendment.
Amendment put and declared lost.
I move amendment No. 62:
In page 20, lines 17 and 18, to delete "with the consent of the Minister".
I second the amendment.
Amendment put and declared lost.
I move amendment No. 63:
In page 21, to delete lines 2 to 25 and substitute the following:
"23. The Principal Act is amended by the substitution of the following section for section 25:
"25. (1) The Authority may issue to the Garda Commissioner written directives concerning any matter relating to the Garda Síochána.
(2) The Garda Commissioner shall, in performing the functions of that office, comply with any directive issued under this section.
(3) As soon as practicable after issuing a directive under this section, the Authority shall provide a copy of the Directive to the Minister who shall cause a copy of the directive to be laid before each House of the Oireachtas, but if compliance with this requirement might prejudice the security of the State or might impede the prevention, investigation or prosecution of an offence, it is sufficient if a written statement indicating that a directive has been issued is laid before each House.
(4) The Authority’s power under subsection (1) may not be exercised to limit the independence of a member of the Garda Síochána in performing functions relating to the investigation of a specific offence or the prosecution of an offence.
(5) The Garda Commissioner shall inform the Authority of the measures taken by the Commissioner to comply with a directive issued under this section and supply the information within the time specified by the Authority.".".
The purpose of the amendment is to allow for the Garda authority, not the Minister, to issue written directives to the Garda Commissioner. Sinn Féin's view is that the Commissioner should be accountable to the authority and that both should be independent of the Minister's control. Under the original heads of Bill, the Garda Commissioner was to be fully accountable to the authority. In the published version, however, this has been watered down such that the Minister is to retain oversight and the Commissioner will merely report to the authority. We are proposing that the authority be independent and not merely fed small bones of delegated power from the Government. For the authority to have real teeth, the Garda Commissioner must be accountable to it. The amendment would ensure that was the case.
I second the amendment.
I share some of Senator Trevor Ó Clochartaigh's concern about the level of control we are leaving in the Minister's hands under the provisions of the Bill. I understand the Garda Representative Association wrote to the Joint Committee on Justice, Defence and Equality stressing the need for independence for the Garda authority. I worry when I hear the Attorney General's advice was A, B, C or D. The Office of the Attorney General consists of several individuals and we frequently have seen the office's advice overturned in the courts. I support Sinn Féin's amendment.
I, too, read the 37 page submission from the GRA. As Senator Gerard P. Craughwell noted, that body wrote to the Oireachtas committee seeking an appearance before it to expand on its submission. Its request was not facilitated, which is a great shame. The GRA represents rank and file members of An Garda Síochána and I am surprised it was not given the opportunity to address the justice committee. Although it is probably a matter for the Chairman of the committee, perhaps the Minister of State might explain why that invitation was not issued.
It is a pity, as Senator Marie Moloney said, that the GRA did not have an opportunity to make an oral submission to the Oireachtas committee. That said, the body has given an overall welcome to the Bill. We are not all entirely happy with every aspect of the legislation, but it is a very significant step in the right direction in instilling the type of accountability the people want to see within An Garda Síochána. I was part of a delegation of the Joint Committee on Justice, Defence and Equality which travelled to Portugal some weeks ago and spent several hours at police headquarters in Lisbon. The absolute confidence the Portuguese people have in their police force is breathtaking. I hope we can re-instil the respect and confidence the people had in the past in An Garda Síochána. That confidence was perhaps eroded in recent times as a result of various issues, particularly the penalty points debacle. The Oireachtas has a responsibility to ensure the Garda is restored to that high level of regard in the Irish psyche. In the past 12 months, since the Minister, Deputy Frances Fitzgerald, and the Minister of State, Deputy Aodhán Ó Ríordáin, have taken up their roles, we have seen that confidence restored incrementally under the leadership of the Commissioner, Ms Nóirín O'Sullivan.
There is still a long way to go.
The Senator is absolutely right. However, nobody here has any major issue with the principle of the Bill. There certainly are amendments we would like to see made, but the legislation represents a first step forward. If this House can send a message that we support the Bill, irrespective of party allegiances and our concerns about certain elements of it, it will be a vote of confidence in the new authority. All legislation that comes through this House can be amended in the future if it is deemed necessary to do so. We would all ultimately like to see the Minister having less power in this matter, but it must be a step-by-step process. I appeal to my good friends and colleagues on the other side of the House not to press their amendment on this occasion.
I cannot comment on why the GRA did not speak before the Joint Committee on Justice, Defence and Equality. The current arrangements for the issuing of directives to the Garda Commissioner by the Minister are to be found in section 25 of the principal Act. In particular, Government approval is required before any directive can be issued. Where a directive is issued, it must, except in certain cases relating to sensitive matters, be laid before both Houses of the Oireachtas. Section 23 of the Bill amends the current provision in the principal Act to enable the policing authority to recommend to the Minister that a directive on a specific matter relating to policing services be issued to the Garda Commissioner. This provision recognises there may be circumstances in which the authority considers Government or ministerial intervention is appropriate in a particular instance.
As I outlined to the House on other amendments proposed by the Senator, there are constitutional limitations on the extent to which it is open to the Oireachtas, by way of legislation, to delegate the Government's ultimate control over policing to another body. Having considered the relevant legal advice provided by senior counsel on the application of Article 28.2 of the Constitution, the Minister believes there would be constitutional difficulties in seeking to enable the authority solely to direct the Garda Commissioner on policing matters. The effect of the Senator's amendment would be to give the authority capacity to issue a directive "concerning any matter relating to the Garda Síochána" without prior Government approval. Under the amendment, the authority would be in a position to issue a directive to the Garda Commissioner on a security matter, for instance, even though such matter would not fall within the remit of its functions.
Furthermore, the amendment would remove the capacity of the Government to authorise the Minister to issue a directive to the Garda Commissioner in respect of any matter. In this regard the Minister considers that what the Senator has proposed would be incompatible with the requirements of Article 28.2 of the Constitution. In the circumstances, the Minister cannot accept the amendment and I invite the Senator to consider withdrawing it.
Amendment put and declared lost.
Amendments Nos. 64 and 65 are related and may be discussed together.
I move amendment No. 64:
In page 24, lines 33 and 34, to delete “, made with the approval of the Government”.
The reasoning for this amendment is similar to the previous one. We believe the Bill should allow for the authority and not the Minister to issue written directives to the Garda Commissioner. We have heard the arguments per se. Clearly, there are two rather differing opinions on the matter. The Government stance is to try to retain as much control as possible over what will be an independent policing authority. We believe the authority should be far more independent. On that basis we are going to press the amendment.
I second the amendment.
Section 38 of the principal Act makes provision for the Garda Commissioner to authorise the installation and operation of closed circuit television schemes in public places for the sole or primary purpose of securing public order and safety in public places, by facilitating the deterrence, prevention, detection and prosecution of offences.
In the development of the principal Act, section 38 was given particular consideration in close consultation with the Office of the Attorney General. In the course of advice provided by that office, it was indicated that the operation of CCTV schemes under the principal Act would fall directly within the executive function of the State within Article 28.2 of the Constitution. Accordingly, for the constitutional reasons I have explained in connection with previous amendments, specific roles were provided by the Government and the Minister in section 38. In part, these roles were intended to ensure that CCTV schemes would operate with due respect and safeguards for the constitutional right to privacy.
Section 31 enables the authority to perform the functions currently exercised by the Minister relating to community CCTV schemes. In particular, the authority will, by order made with the approval of the Government, establish applicable criteria for the purposes of community CCTV schemes. Moreover, it may, with the consent of the Minister, issue guidelines to the Garda Commissioner relating to the supervision and control by the Commissioner of the monitoring of CCTV by authorised persons.
The effect of the Senator's amendment would be to remove any role for the Government and the Minister under the section. Acceptance of the amendments, therefore, would prevent the Government and the Minister from exercising their constitutional functions.
In all the circumstances, the Minister is satisfied that the provisions enable the authority to exercise an appropriate level of oversight in respect of CCTV schemes while not impinging on the constitutional functions of the Minister and the Government. In the circumstances, it is regretted that the amendments cannot be accepted and I call on the Senator to withdraw them.
Amendment put and declared lost.
I move amendment No. 65:
In page 24, lines 37 and 38, to delete “, with the consent of the Minister”.
I second the amendment.
Amendment put and declared lost.
I move amendment No. 66:
In page 27, lines 32 and 33, to delete “with the consent of the Minister”.
This amendment relates to the membership of the authority. We are suggesting the authority should comprise 21 members, 12 of whom should be ordinary members appointed by the Government subject to section 62D, and nine of whom should be political members appointed in accordance with the relevant subsection. The nine political members elected to the authority should be appointed through the use of the d’Hondt method of election at a date not later than 30 days after the date of enactment of the Bill. The 12 ordinary members appointed to the authority by the Government should be appointed at a date not later than 30 days after the enactment of the Bill. Following this appointment, the members should, by casting a secret ballot, elect one of the ordinary members to be chairperson of the authority. If a person stands elected under subsection (3), the person should, on that day, stand elected as the first chairperson of the authority.
In appointing the 12 ordinary members of the authority, the Government should have regard to the objective of there being no fewer than six members who are women and no fewer than six members who are men. Except for the first-appointed members of the authority and subject to section 62E(5), a person should not be appointed as a member of the authority unless a resolution has been passed by each House of the Oireachtas recommending his or her appointment. Except for the first appointed ordinary members of the authority and subject to section 62E, the Government should appoint ordinary members of the authority from among such persons as are recommended by the service in accordance with section 62D for appointment as such ordinary members.
The proposed amendment would serve to address the issues we see around the membership of the authority as put forward by the Government. We are advocating for a 21-member authority, with nine political representatives to be elected based on the d’Hondt method and 12 ordinary members who are representative of civil society and who have expertise in the field. The 12 ordinary members should elect a chairperson from among themselves. We also believe there should be a role for advisory groups in the process.
I second the amendment.
The wording sought to be deleted by the amendment is concerned with the terms and conditions of the members of the Garda audit committee. They are standard provisions found in many statutes. The fixing of such terms and conditions is an administrative rather than a core oversight function. It is the standard practice that the terms and conditions of State appointees such as the members of an audit committee would be agreed with the relevant Minister and the Minster for Public Expenditure and Reform. In the circumstances, the Minister is calling on the Senator to consider withdrawing the amendment.
Amendment put and declared lost.
Amendment No. 67 has been ruled out of order because it involves a potential charge on the Exchequer.
Amendment No. 67 not moved.
Amendments Nos. 68 and 69 are related and may be discussed together.
I move amendment No. 68:
In page 33, to delete lines 24 to 27.
This amendment also relates to the make-up of the authority. We are proposing a 21-member authority with nine political representatives to be elected based on the d'Hondt method and 12 ordinary members who are representative of civil society and have expertise in the field. We propose that the 12 ordinary members should elect a chairperson from among themselves and that there should also be a role for advisory groups in the process, as I have outlined.
I second the amendment.
A key aim of the Government in establishing the authority is to provide a system of oversight of An Garda Síochána that is effective and fully independent. In this context, the Government is of the clear view that the membership of the authority should not include serving politicians, and the Bill provides that they will be ineligible to be members.
I recognise that the Senator's amendments are related to a further proposed amendment that will not be discussed. However, the Minister would have serious concerns with any proposal to remove the ineligibility provisions which prevent politicians from serving on the authority. As I have indicated, this would run counter to the firm policy of the Government.
The approach of the Government to this matter is to remove the operation of the authority from the political arena. At the same time it is important to bear in mind that it will be open to committees of the Oireachtas to raise relevant matters directly with members of the authority.
I understand the Senator's overall approach is based to some extent on the system applicable to the Northern Ireland Policing Board which has 19 members, comprising ten political members and nine independent members appointed by the Minister with responsibility for justice. However, the Minister believes the composition of the Northern Ireland Policing Board must be viewed in the context of the specific requirements in the North for cross-party and cross-community support for the policing arrangements in that jurisdiction.
It is relevant to note that in its report published in October 2014 the joint Oireachtas committee recommended that the Scottish model would be appropriate for our jurisdiction. The legislation for the Scottish authority specifically prohibits serving politicians from membership. In the circumstances, the Minister is inviting the Senator to withdraw the amendments.
Amendment put and declared lost.
I move amendment No. 69:
In page 34, to delete lines 8 to 17.
I second the amendment.
Amendment put and declared lost.
I move amendment No. 70:
In page 35, line 28, to delete “nominating” and substitute “appointing”.
I second the amendment.
Amendment put and declared lost.
I move amendment No. 71:
In page 37, between lines 14 and 15, to insert the following:
“(i) monitor and address human rights and equality compliance by An Garda Síochána at every level of its operation and ensure issues identified by the Garda Síochána Ombudsman Commission are dealt with in an effective manner.”.
This amendment refers to the authority's role on human rights. This provision was in the original heads of the Bill but was removed. There is a vital need for the authority to have a role in monitoring and addressing human rights compliance by An Garda Síochána. We would argue that the Bill must be amended to re-insert this function and will be pressing this amendment.
I second the amendment.
I am aware that the general scheme of the Bill provided that the authority would monitor and address human rights compliance by An Garda Síochána in policing matters. However, this element was subsequently removed from the Bill prior to publication so as to avoid duplication of the functions of the Irish Human Rights and Equality Commission, IHREC. Senators will be aware that the IHREC is the primary State body which oversees and monitors Garda human rights and equality compliance. It is also important to make it clear that the authority will, in accordance with its general supervisory powers, have the ability to pursue human rights policing matters directly with An Garda Síochána. This could be done in different ways and, for example, such issues could be raised in the public meetings it will hold with the Garda Commissioner.
In addition, under a new section which is being inserted by section 44 of the Bill, the authority will be in a position to liaise closely with the IHREC. Within this framework the Minister has no doubt that there will be close co-operation between the two bodies and that they will work together very effectively. I might also mention that human rights is a key organisational priority for An Garda Síochána. For example, section 16 of the 2005 Act provides a revised form of declaration for persons joining the force which specifically directs each new member to have regard for human rights in carrying out their policing duties; a Garda declaration of professional values and ethical standards, which underpins all Garda practice, policy and procedure, has been published and distributed to each member; all operational Garda directives make reference to the human rights principles applicable to the relevant instruction so as to remind all members of their human rights obligations; the new trainee programme for Garda recruits - BA in applied policing programme - and ongoing professional development measures for members incorporates specific human rights training; and the Garda Commissioner receives advice from the strategic human rights advisory committee on the ongoing development of human rights policies within An Garda Síochána. As well as policing expertise, the committee includes representatives from the Irish Human Rights and Equality Commission, Amnesty International and the Irish Council for Civil Liberties. In the circumstances, the Minister considers that fully adequate provision has been made in order to ensure human rights compliance by and within An Garda Síochána. I ask the Senator to not to press the amendment.
Amendment put and declared lost.
I move amendment No. 72:
In page 37, to delete lines 19 to 23 and substitute the following:
“(4) Any function of the Authority may be performed through or by the Chief Executive or other member of its staff duly authorised in that behalf by the Authority.”.
I second the amendment.
Amendment put and declared lost.
I move amendment No. 73:
In page 37, to delete lines 28 to 32 and substitute the following:
“(6) The Authority may provide for the performance of one or more of its functions by a committee, under the general direction of the Authority.”.
I second the amendment.
Amendment put and declared lost.
I move amendment No. 74:
In page 39, lines 18 and 19, to delete “with the consent of the Minister and the Minister for Public Expenditure and Reform,”.
This amendment is similar to previous amendments tabled and would remove the need for the authority to get ministerial consent in the exercise of its functions. We consider that the level of independence that the authority should be given is made greater by this amendment and ask the Minister of State to consider accepting it.
I second the amendment.
The effect of this amendment would be to remove the requirement for the consent of the Minister for Justice and Equality and the Minister for Public Expenditure and Reform where the authority is seeking to enter into contracts with persons or appoint consultants. The requirement for ministerial consent is a standard requirement in such circumstances and it is an important aspect of good governance. As the relevant arrangements that have been made in the Bill are in line with the established procedures for State bodies, the Minister is not in a position to accept the amendment. In the circumstances, I ask the Senator to withdraw the amendment.
Amendment put and declared lost.
Amendments Nos. 75 to 84, inclusive, are related and may be discussed together.
Government amendment No. 75:
In page 43, line 17, to delete “who shall be” and substitute “who, subject to subsections (2) and (3), shall be”.
The purpose of these amendments is to make provision for a chief executive designate of the authority and they have been introduced in consultation with the chairperson designate. They are also in line with the statutory procedures that have been adopted for other State agencies.
Senators will be aware that I am making arrangements for the authority to operate in shadow format pending the enactment and commencement of the legislation. This is a process that is specifically provided for in the Bill. Arrangements are being made with the Public Appointments Service for the selection of the ordinary members designate. It is also proposed that the chief executive will be in place as quickly as possible following a selection process to be undertaken by the Public Appointments Service. It is important that in the event that the selection of the chief executive by the Public Appointments Service is completed before the commencement of the legislation, the person selected will be in a position to operate as a chief executive designate. This will significantly facilitate the preparations for the establishment of the authority.
The authority will formally appoint a chief executive designate as the chief executive, following the establishment day. Amendments Nos 75 and 76 make this possible. Amendments Nos. 77 to 84 are technical and consequential on amendments 75 and 76. They operate to re-number subsections (2) to (9).
Amendment agreed to.
Government amendment No. 76:
In page 43, between lines 20 and 21, to insert the following:
“(2) The Minister may, before the establishment day of the Authority, designate a person to be the first chief executive officer of the Authority.
(3) If, immediately before the establishment day of the Authority, a person stands designated by the Minister under subsection (2), the Authority shall appoint that person to be the first Chief Executive.”.
Amendment agreed to.
Government amendment No. 77:
In page 43, to delete line 21 and substitute the following:
“(4) The Chief Executive shall—”.
Amendment agreed to.
Government amendment No. 78:
In page 43, to delete line 29 and substitute the following:
“(5) The Chief Executive shall—”.
Amendment agreed to.
Government amendment No. 79:
In page 43, to delete line 33 and substitute the following:
“(6) The Chief Executive shall—”.
Amendment agreed to.
Government amendment No. 80:
In page 43, line 39, to delete “ (5) The Chief Executive may” and substitute the following:
“(7) The Chief Executive may”.
Amendment agreed to.
Government amendment No. 81:
In page 44, line 1, to delete “(6) The Chief Executive shall not” and substitute the following:
“(8) The Chief Executive shall not”.
Amendment agreed to.
Government amendment No. 82.
In page 44, line 6, to delete “ (7) The Chief Executive shall” and substitute the following:
“(9) The Chief Executive shall”.
Amendment agreed to.
Government amendment No. 83:
In page 44, line 9, to delete “ (8) The Chief Executive shall not” and substitute the following:
“(10) The Chief Executive shall not”.
Amendment agreed to.
Government amendment No. 84.
In page 44, to delete line 12 and substitute the following:
“(11) If the Chief Executive—”.
Amendment agreed to.
Amendments Nos. 85 and 86 are related and may be discussed together.
I move amendment No. 85:
In page 47, line 25, to delete “and subject to the consent of the Minister”.
This amendment is similar to many others we have tabled and aims to give the authority the independence it deserves. In order to do this, we propose deleting the phrase "and subject to the consent of the Minister" for reasons put forward earlier.
I second the amendment.
Senators will recall that among the provisions of the Garda Síochána (Amendment) Act 2015 was a provision inserting a new section 102B into the principal Act which brought the Garda Commissioner within the scope of GSOC investigations for the first time. This was a significant development and one to which the Government attaches a high degree of importance. The issue of Ministerial consent to GSOC carrying out an investigation into the conduct of the Garda Commissioner was debated during the passage of the 2015 Act through the Houses. Under the provisions of the Act the consent of the Minister is required before a complaint against the Commissioner is investigated by GSOC. In this regard, it must be borne in mind that in addition to carrying out her general policing functions, the Garda Commissioner is the head of the national security service. In the latter role the Commissioner fulfils a vital role which is very closely linked to the obligations of the Government to preserve the security of the State. After careful consideration the Government was satisfied that taking account of the key position of the Commissioner in security matters, the Minister should consent to any proposed investigation by GSOC into any concerns that the Garda Commissioner may have committed an offence or behaved in a manner that would constitute serious misconduct.
However, the Minister would emphasise that, as proposed in the Bill, the requirement for ministerial consent does not simply permit the Minister to refuse to give consent - there must be reasons for doing so. This is spelled out in proposed subsection (3)(a) which states the Minister must provide reasons to the authority where he or she refuses to consent to the authority making a request to GSOC. In these circumstances, there is no doubt that it would only be in exceptional cases that the Minister would not consent to a proposed investigation. Accordingly, the Minister considers that it is almost impossible to envisage any circumstances under which, on foot of a demonstrable concern that the Garda Commissioner may have committed an offence or behaved in a manner that would constitute serious misconduct, ministerial consent would be withheld. While the Minister appreciates the concerns that have prompted the Senator's proposed amendment, she does not believe they are necessary for the reasons I have indicated. In the circumstances, the Minister asks the Senator to consider withdrawing the amendments.
Amendment put and declared lost.
I move amendment No. 86:
In page 47, to delete lines 33 to 37.
I second the amendment.
Amendment put and declared lost.
Government amendment No. 87:
In page 54, between lines 5 and 6, to insert the following:
"
|
No. 31 of 1924 |
Dublin Police Act 1924 |
The whole Act |
|
No. 7 of 1925 |
Police Forces Amalgamation Act 1925 |
Section 16 |
|
No. 10 of 1926 |
Police Forces Amalgamation (Amendment) Act 1926 |
The whole Act |
|
No. 14 of 1958 |
Garda Síochána Act 1958 |
The whole Act |
"
Amendment agreed to.
Question put: "That the Bill, as amended, be received for final consideration."
The Seanad divided: Tá, 25; Níl, 2.
Tá
- Bacik, Ivana.
- Barrett, Sean D.
- Brennan, Terry.
- Burke, Colm.
- Coghlan, Eamonn.
- Coghlan, Paul.
- Comiskey, Michael.
- Conway, Martin.
- Craughwell, Gerard P.
- Cummins, Maurice.
- Gilroy, John.
- Henry, Imelda.
- Higgins, Lorraine.
- Keane, Cáit.
- Landy, Denis.
- Moloney, Marie.
- Mooney, Paschal.
- Mulcahy, Tony.
- Mullins, Michael.
- Naughton, Hildegarde.
- O'Donovan, Denis.
- O'Neill, Pat.
- van Turnhout, Jillian.
- Whelan, John.
- Wilson, Diarmuid.
Níl
- Cullinane, David.
- Ó Clochartaigh, Trevor.
Tellers: Tá, Senators Ivana Bacik and Paul Coghlan; Níl, Senators David Cullinane and Trevor Ó Clochartaigh.
Question declared carried.
Question, "That Fifth Stage be taken now," put and declared carried.
Question, "That the Bill do now pass," put and declared carried.
When is it proposed to sit again?
At 10.30 a.m. tomorrow.
The Seanad adjourned at 8.15 p.m. until 10.30 a.m. on Wednesday, 24 June 2015.