Garda Síochána (Policing Authority and Miscellaneous Provisions) Bill 2015: Committee Stage

Apologies have been received from Deputy Finian McGrath. I understand Deputy Mick Wallace will attend in substitution for Deputy McGrath at some stage. This meeting has been convened to consider the Garda Síochána (Policing Authority and Miscellaneous Provisions) Bill 2015. I welcome the Minister of State and his officials. Will the Minister of State clarify whether we have to finish at 7 p.m.?

Amendments Nos. 115 and 116, in the names of Deputy Mac Lochlainn and Deputy Finian McGrath, seek to increase the number of members of the authority to 21 and 16 respectively. Currently, the Bill provides that the policing authority would be comprised of nine members. Increasing the membership of the authority would introduce a potential charge on the Exchequer because of additional remuneration and expenses to be paid to the members. Accordingly, the amendments have been ruled out of order on account of Standing Order 156(3).

Sections 1 to 3, inclusive, agreed to.
SECTION 4

Amendments Nos. 1 and 2 are in the name of Deputy Finian McGrath. Amendments Nos. 1 and 2 are related and may be discussed together by agreement. Deputy Finian McGrath is not here so the amendments cannot be moved.

Amendments Nos. 1 and 2 not moved.

Amendment No. 3 is in the name of Deputy Mac Lochlainn. If the question on Amendment No. 3 is agreed, then Amendment No. 4 cannot be moved. Amendments Nos. 3 to 6, inclusive, amendments Nos. 82 to 87, inclusive, and amendments Nos. 90, 101 and 109 are related and may be discussed together by agreement. Amendment No. 4 is a physical alternative to amendment No. 3 and amendment No. 6 is a physical alternative to amendment No. 5.

Can I get a copy of the groupings please? I apologise for this, I thought I had a copy of them but it seems I do not.

I remind members that we are discussing Amendments Nos. 3 to 6, inclusive, amendments Nos. 82 to 87, inclusive, and amendments Nos. 90, 100 and 109.

I move amendment No. 3:

In page 7, line 15, to delete “the Minister” and substitute “a member of the judiciary, as delegated by the Chief Justice”.

I attended a seminar organised by the Law Society of Ireland and Irish Human Rights and Equality Commission. The Minister for Justice and Equality, Deputy Fitzgerald, spoke at the event. Conor Brady is a former member of the Garda Síochána Ombudsman Commission and former editor of The Irish Times and is a noted commentator on policing matters. At the seminar in question, he expressed some concern over the procedure for when there is a dispute between the Garda Síochána Ombudsman Commission or the policing authority and the force in respect of what constitutes a security matter. Let us suppose someone in the authority requested documentation or information and the Garda Commissioner indicated that she could not provide it on the grounds that it was a security matter. Rather than the Minister adjudicating on whether it was a security matter - I imagine members would accept that there could be reasonable grounds for that - we recommend it should be done by a member of the Judiciary, as appointed or delegated by the Chief Justice. We believe that would represent an appropriate independent oversight mechanism to ensure that this conflict is reasonably resolved.

Moreover, it fits the need to ensure that the new policing authority has appropriate oversight of An Garda Síochána and the need to address the concern with regard to the historical relationship between the Government of the day and An Garda Síochána and fears concerning political interference in the work of the force. If there was an independent adjudicator or a member of the Judiciary, as recommended by the Chief Justice, it would represent a more appropriate mechanism than the Office of the Minister. It would certainly address the perception and concerns around political interference or the relationship being unhealthily close, as it has been in the past. Indeed, that is a major part of the reason we are discussing this legislation and the reason we have reached this point today. That is the reason these amendments have been tabled and we trust they can be accepted. They are entirely reasonable and come from an eminent contributor, Conor Brady.

I thank the Deputy. Does he realise that we are discussing a range of amendments now? I am simply trying to be helpful.

I thank the Chairman for the welcome afforded to me.

Deputies will be aware that the role of the policing authority will be to oversee the performance by An Garda Síochána of its functions relating to policing services. The Garda Síochána is also the security service for the State and the Garda Commissioner will continue to be accountable to the Minister and the Government in respect of national security. This is generally in line with a broad consensus within the Houses that security matters should remain within the remit of the authority. The Bill provides that in the event of a disagreement between the authority and the Garda Commissioner it would be a question for the Minister to decide whether a matter is a policing or a security matter. Deputy Mac Lochlainn's amendments would remove the role of the Minister in determining whether a matter relates the security of the State. The Minister has considered the amendments carefully and 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 issue relates to policing or security matters should be undertaken by the Minister 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 section 44, the authority will, in performing its functions, have regard to the importance of the functions of the Garda Síochána concerning security services. In the circumstances, the Minister believes that the scope for disagreements between the authority and the Garda Commissioner over whether a particular item is a security or a policing matter will be rather limited. In addition, discussions to resolve any difficulty will undoubtedly take place between the authority and the Commissioner before any issue is referred to the Minister. Moreover, I emphasise that before making any decision on whether a policing or a security matter is involved, a Minister will be required to act impartially.

The approach adopted in the Bill is in line with similar arrangements on security matters in Northern Ireland. For example, the PSNI Chief Constable may refer to the Secretary of State a requirement to submit a report to the Northern Ireland Policing Board if it appears to the Chief Constable that a report in compliance with the requirement would contain information which ought not to be disclosed in the interests of national security. The Secretary of State can then modify or set aside the requirement.

Interestingly, where the information ought not, in the opinion of the Chief Constable, be disclosed on the basis that it is sensitive, personal information or it would, or would be likely to, prejudice proceedings which have been commenced in a court of law, the Chief Constable may refer the matter to the Minister of Justice who can modify or set aside the requirement. The Minister, therefore, believes that the arrangements proposed in this Bill are appropriate and asks the Deputies not to press these amendments.

Does Deputy Mac Lochlainn or other Deputies wish to comment?

I am deeply disappointed with that response. I though the proposal put forward that day was a very good one. What we are trying to achieve here is not just another layer of accountability for the Garda Síochána but to have a policing authority which has real teeth and the power to hold An Garda Síochána to account and which can capture the imagination and, more importantly, the confidence of the public. I would have thought an independent adjudicator, such as a senior member of the Judiciary, a person whom we would respect, put forward by the Chief Justice would fit that role. In the Bill, we are defining what security is, so it is appropriate for a member of the Judiciary to interpret the law. That is what we ask the Judiciary to do every day. I cannot understand why we would not trust a senior member of the Judiciary, which is clearly independent, to look at that area.

The Minister has also referred to the situation in the North. In Britain, one does not just have a police service dealing with security matters, there is a designated security agency, MI5 or MI6 which deals with those matters and is accountable to a committee in Westminster. In relation to security matters, there is no accountability to the Oireachtas. With all due respect, that is a poor comparison to put forward.

I protest in the strongest terms about this decision. I will press the amendment and will table it again on Report Stage. I appeal to the Minister of State and the Minister for Justice and Equality to reflect on this amendment in the spirit it is presented.

I refer to a suggestion not from Sinn Féin but from Conor Brady, a respected former Garda Síochána Ombudsman Commissioner and former editor of The Irish Times, a man respected for his views on policing matters and his proposals are based on his immense experience. I appeal again to the Minister of State to reconsider my amendments and discuss them with the Minister to see if this can be done on Report Stage.

Do other members wish to comment? Deputy Wallace is substituting for Deputy Finian McGrath, who has tabled a number of amendments which are grouped and are being discussed. Once the discussion on amendments that are being debated together has been completed, we will not be coming back to them. When we reach these amendments, we decide whether they will be pressed and voted on. We will not be debate them again. This is the time to discuss those amendments. I remind members to address the Chair as it makes the proceedings flow better.

I acknowledge the points made by Deputy Mac Lochlainn. Let me restate that the Minister has considered these amendments very carefully and in this particular case, given that the security of the State is a priority function of Government, the task of deciding whether an item relates to policing or security matters should be undertaken by the Minister and has to take place in his or her capacity as a member of the Government. The scope for disagreements because of the clear definitions will mean that these disputes will, in any event, be very limited. As I have said, the Minister for Justice and Equality has considered this point very carefully.

A number of my amendments are being discussed with amendments Nos. 3 to 6, inclusive, I want to ensure that I can table amendments on Report Stage. The amendments are similar to Deputy Mac Lochlainn's amendments. The thinking is to prevent the excuse of national security being invoked by the Minister to prevent full investigation by GSOC. The proposed legislation sets the Minister as the final arbiter if there is a disagreement over whether an issue is considered a policing or security one. The Minister could have a self-interest in this categorisation and it is illogical to consider this a safeguard of any sort. Despite the fact that Ms Josephine Feehily said that the demarcation between policing and security is something to be tested, there is no appeal to the courts and no way to test it. The Minister for Justice and Equality has the final say.

Decisions of national security policing should be dealt with by an alternative body. I put in GSOC because I did not want my amendment to be ruled out of order because it might be ruled as a cost to the Exchequer if I invented a new body. There is a need for an independent arbiter and a High Court judge should be involved as well. I hope to discuss these amendments in the Chamber.

Do I have to mention all my amendments individually?

If the Deputy wishes to refer to them, he can do so.

As long as I am able to table these amendments on Report Stage, I am fine with it.

As we are discussing the amendments together, once they are discussed, that is fine.

On the specific point made by Deputy Wallace on amendments in the name of Deputy Finian McGrath, the amendments would assign to GSOC the functions of Government in relation to national security. Deputies are all aware that the core function of GSOC is to investigate complaints made against members of the Garda Síochána and has no oversight function in relation to national security. I think there has been a broad consensus that the authority should not have a function with respect to security. The effect of the amendment would also give rise to an unusual set of reporting arrangements where the Garda Commissioner would among other duties account fully to GSOC in relation to security services, through the Secretary General of the Minister's Department. It is hard to understand how that might work in practice.

Along similar lines to the other amendments being discussed, given the security element, these cannot be accepted.

I appreciate what the Minister of State has said. I support the point that if it is an issue of national security and the Government so deems it, that it would be in its exclusive domain. If that were not the case and if the State was to be affected by the concerns, the responsibility would not rest with the Government but with another party, notwithstanding its capacity and ability to analyse and understand situations. What safeguards are built in, or what process or procedures are there? If a Minister is making such a decision, would he or she have to publish it? Deputy Mac Lochlainn makes the point about accountability - in other words, that it could not happen in a vacuum, notwithstanding the fact that one might never know. For example, some of things that are happening in regard to ISIS in other countries could give rise to serious issues that might never, or should never, be disclosed. One would have to take it in good faith that the Government acted accordingly. What accountability would the Minister have?

The Minister would have to explain his or her decision to both parties in the event of a disagreement. As to whether there would be a report, it is unlikely that would require a report given that there would be two parties involved who would each get the same explanation for the decision.

My concern is that one assumes there may be an occasion the Minister would have to consult with the Attorney General. Would that advice be privileged and, therefore, not be published?

All advice from the Attorney General to Ministers is privileged.

I take it that nobody else wishes to comment on this set of amendments. Does Deputy Mac Lochlainn wish to press amendment No. 3?

As the full membership of the committee is not present, under Standing Orders we are obliged to wait eight minutes or until the full membership is present before proceeding to take the division.

Amendment put:
The Committee divided: Tá, 2; Níl, 8.

  • Mac Lochlainn, Pádraig.
  • Wallace, Mick.

Níl

  • Collins, Niall.
  • Farrell, Alan.
  • Ferris, Anne.
  • Kenny, Seán.
  • McFadden, Gabrielle.
  • Murphy, Dara.
  • O'Dowd, Fergus.
  • Stanton, David.
Amendment declared lost.

I move amendment No. 4:

In page 7, line 15, to delete “the Minister” and substitute “the Ombudsman Commission, which will consult a designated Judge of the High Court who will act as an independent arbiter”.

Amendment put and declared lost.

I move amendment No. 5:

In page 7, to delete lines 16 and 17 and substitute the following:

“(4) The determination by the Ombudsman Commission in consultation with a designated Judge of the question or dispute referred to them under subsection (3) shall be subject to appeal through the Courts.”.

Amendment put and declared lost.

I move amendment No. 6:

In page 7, line 16, to delete “the Minister” and substitute “a member of the judiciary”.

Amendment put and declared lost.
Section 4 agreed to.
SECTION 5

I move amendment No. 7:

In page 7, to delete lines 28 to 30 and substitute the following:

"(b) the principle that effective and efficient policing is dependent on the confidence, support, engagement and cooperation of local communities and every member of the Garda Síochána or member of the civilian staff of the Garda Síochána should, in carrying out his or her functions—

(i) act professionally, ethically and with integrity,

(ii) carry out his or her functions with the aim of securing the support of, and acting in cooperation with, the local community, and

(iii) be guided by the code of ethics under section 17 (Code of Ethics)".

We are looking to substitute the amendment listed above for lines 28 to 30 in the new section 3B(b) inserted by section 5 of this Bill. The policing principles section of the proposed legislation should include a reference to the code of ethics in section 17. The 2005 Act sets out that the Minister shall establish by regulation a code of ethics, including conduct and practice for members of An Garda Síochána following consultation with the Garda Commissioner, the Garda Síochána Ombudsman Commission and the Irish Human Rights and Equality Commission and with regard to European standards. Neither the Minister nor any previous Ministers actually has done this.

The proposed Bill sets out that the authority shall set a code of ethics but the clause regarding breach of the code of ethics being a breach of discipline, which was included in the heads of Bill in November 2014, has been removed from the proposed legislation. The heads also included the code of ethics in the policing principles but this has been removed from the legislation. Under the 2007 disciplinary regulations, a breach of the code of ethics if it existed would be a breach of discipline. However, this is only secondary legislation and can be revoked at any point by the Minister's executive power. We argue in subsequent amendments that a code of ethics should be included in the Bill and that any breach of such a code would be a breach of discipline and sanctioned accordingly.

Section 5 of the Bill inserts a new section 3(b) into the principal Act which sets out the policing principles that will underpin the provision of policing services in the State. According to these principles, policing should be conducted independently, impartially, in accordance with the law and in a manner that respects human rights and supports the proper and effective administration of justice. Such principles are a feature of the legislation underpinning the policing services in Northern Ireland, Scotland and New Zealand.

I note that the Deputy's amendments seek to replace the text in the Bill with text from the general scheme of the Bill that related to the principles. The Deputy will be aware that a general scheme is not of itself law. Rather, it purports to set out the general policy requirements that are sought to be included in the legislation when drafted by the Office of the Parliamentary Counsel.

Following intensive discussions between the Minister's officials, Parliamentary Counsel and legal advisers in the Office of the Attorney General, the provision relating to policing principles was developed to set out a series of overarching and guiding principles to underpin the provision of policing services in the State rather than to impose specific requirements on individual members of An Garda Síochána. That is not to say, of course, that the specific requirements in the Deputy's amendment should not inform members in carrying out their day-to-day duties.

In this context, I draw the attention of the Deputy to the solemn declaration under section 16 of the principal Act which is made by each and every member of An Garda Síochána before a peace commissioner. Each member declares that he or she will faithfully discharge the duties of a member of An Garda Síochána with fairness, integrity, regard for human rights, diligence and impartiality, upholding the Constitution and the laws, according equal respect to all people, and to the best of his or her skill and knowledge, discharge all duties according to law. In the circumstance, the Minister would invite the Deputy to withdraw his amendment.

I certainly will not withdraw the amendment. In respect of many issues in policing over recent years we have found that the lack of a registered code of ethics has been a big problem, and I am a bit disappointed that the Government has not taken the same approach. I will be pressing the amendment.

Amendment put and declared lost.
Section 5 agreed to.
Sections 6 and 7 agreed to.
NEW SECTION

Amendments Nos. 8 to 74, inclusive, 77, 78, 141, 142, 144 and 149 to 152, inclusive, are related. Amendments Nos. 9 to 13, inclusive, are physical alternatives to amendment No. 8. If amendment No. 8 is agreed, amendments Nos. 9 to 13, inclusive, cannot be moved. Amendment No. 15 is a physical alternative to amendment No. 14. Amendments Nos. 23 to 28, inclusive, are physical alternatives to amendment No. 22. Amendment No. 30 is a physical alternative to amendment No. 29. Amendments Nos. 37 and 38 are physical alternatives to amendment No. 36. Amendment No. 40 is a physical alternative to amendment No. 39. Amendments Nos. 42 to 46, inclusive, are physical alternatives to amendment No. 41. Amendment No. 50 is a physical alternative to amendment No. 49. Amendments Nos. 55 and 56 are physical alternatives to amendment No. 54. Amendments Nos. 58 and 59 are physical alternatives to amendment No. 57. Amendment No. 67 is a physical alternative to amendment No. 66. Amendment No. 69 is a physical alternative to amendment No. 68. Amendment No. 71 is a physical alternative to amendment No. 70. Amendment No. 142 is a physical alternative to amendment No. 141. Amendment No. 150 is a physical alternative to amendment No. 149. Amendment No. 152 is a physical alternative to amendment No. 151. Amendments Nos. 8 to 74, inclusive, 77, 78, 141, 142, 144, and 149 to 152, inclusive, will be discussed together.

I move amendment No. 8:

In page 8, to delete lines 6 to 22 and substitute the following:

" "9. (1) Subject to this section, the appointment of a person to be the Commissioner of the Garda Síochána shall be made by the Authority following consultation with the Government.

(2) The Authority shall not appoint a person under subsection (1) unless it has invited the Service to undertake a selection competition for that purpose and the Service has undertaken such a competition.

(3) The Authority shall agree with the Service the selection criteria and process that are to apply to the selection competition under this section.

(4) A person shall not be appointed by the Authority under subsection (1) unless it is satisfied that the person is suitable for appointment as the Garda Commissioner by reason of his or her possessing such relevant experience, qualifications, training or expertise as is appropriate having regard, in particular, to the functions assigned to the Garda Commissioner by or under this Act.".

I will not discuss all the amendments at the moment.

To be clear, we must debate them now. We cannot debate them again. We must debate all these amendments now.

I am not compelled to address every single one of them, am I?

No. It is up to the Deputy.

The proposed legislation includes a complicated system of appointment and removal of persons from their positions whereby, depending on their rank, a person can be removed by and is answerable to one or even two of three bodies - the Government, the authority or the Commissioner. Further confusion arises where one body appoints and another has the power to remove, for example, in the case of an assistant Commissioner, chief superintendents and superintendents. How can An Garda Síochána be expected to function as a cohesive and disciplined body if there is so much confusion about appointments? The Irish Human Rights and Equality Commission and the Irish Council for Civil Liberties recommend that the authority be responsible for the appointment of senior management, including the Commissioner. I note that in her presentation at a policing conference at Farmleigh, Dr. Vicky Conway-----

I ask all members not to refer to people outside the House.

The authority had responsibility for the appointment of the Commissioner with the approval of the Minister. The legislation as proposed sets out that the Garda Commissioner and any Deputy Garda Commissioners are to be appointed by the Government following the nomination by the authority. However, the authority can only nominate in accordance with the recommendations of the Public Appointments Service which will provide it with one name only. The authority needs the approval of the Government to ask the Public Appointments Service to conduct a selection competition and the Government may veto the authority's nomination in undefined exceptional circumstances.

It is unfair and irrational to ask the authority to be responsible for systemic issues and policies and performance issues when it does not have the power to appoint or remove those responsible for implementing those policies and priorities. At the heart of many of our amendments is the fact that we thought an independent police authority would de-politicise policing in a manner we have not seen before.

Sadly, the paws of the Government in power will be all over policing, as per the norm. There is little change. Most of my amendments are geared around this. It is a major missed opportunity. I will press the amendment.

I will argue along the same lines as Deputy Wallace. Dr. Vicky Conway made a submission to the justice committee in respect of authority in this area. It is appropriate and in order to do so. Respected analysts in the Irish Council for Civil Liberties, ICCL, have been mentioned. It is important to take stock of why we are here. We have had a number of crises and scandals in my county since the Morris tribunal. The actions of a minority of Garda Síochána members have dishonoured the service given by the overwhelming majority. We want to have a police service that is up to modern, international standards, fully independent of political interference and fully accountable. When the gardaí get up in the morning, or the night, to commence their work, we want them to be proud that they are in a police service of the highest international standard.

If we are serious about having a policing authority that is to command the respect and confidence of the public and is to have teeth and real purpose, it must have the ability to appoint, and fire, the Garda Commissioner and deputy commissioner. It needs the power to examine superintendents and chief superintendents and to have oversight of the promotion process in the Garda Síochána. From the sergeant up to the Garda Commissioner, there must be an independent appointment process that is accountable and based on merit from top to bottom. This is required to give the full confidence to the public and, just as important, to ensure the members of the Garda Síochána know they have equal opportunity of promotion, taking into consideration no other issue than their ability, service and capacity. Wherever policing authorities have emerged, including the Northern Ireland Policing Board, this has been the case.

This is the objective of my amendments. They cover the appointments to these positions. It is not just the issue of the appointment of the Garda Commissioner, deputy commissioner, assistant commissioners, chief superintendents and superintendents. It extends right down. In my role as justice spokesperson, I have spoken to many gardaí during recent years. One of the issues they raise is the perception that people have been promoted based on whom they know, not what they know or their ability. As part of the process of creating the policing authority, it is very important to give the authority oversight. While the authority might not appoint the sergeant, inspector or superintendent, it should have oversight over the appointment system. We must have a genuine new departure. My concern with what is proposed is very real.

Could the Deputy focus his attention on whatever amendment he is proposing?

I am. Everything I have said is connected to-----

To be helpful, could the Deputy identify the amendment he is talking about?

It is very unfortunate that whoever makes these decisions has batched together a very large number of amendments.

There is no time limit.

I can speak only in general. I do not have time to go through each amendment.

The Deputy has all the time he needs.

If the Chairman is willing to work with me, I am willing to take as long-----

Absolutely. I want to be helpful.

I appreciate that. I will take my time. The Chairman is correct. I probably should have been more specific. Amendments Nos. 9 to 21, inclusive, deal with the Garda Commissioner. Amendments Nos. 23 to 35 refer to the deputy commissioner. Amendments Nos. 37 to 62 deal with the issue of directly appointing officers from sergeant up to superintendent. A provision in the Bill allows the Minister to hold, initiate and oversee inquiries into policing matters. Amendments Nos. 63 to 69 give those powers to the authority. Amendments Nos. 71 to 73 are technical amendments in line with the power being given to the authority to remove officers.

The intention of amendment No. 74 is to give the Garda Commissioner, with oversight from the authority, as opposed to the Minister, the power to appoint gardaí, sergeants and inspectors. I do not intend that the authority would be directly involved with the many sergeants, inspectors and superintendents who are promoted every year, but that it would have oversight of the process undertaken by the Garda Commissioner. Amendment No. 77 provides that the Minister's consent is not required for the appointment of civilian Garda staff and gives oversight to the authority in this regard. Amendment No. 78 provides that the Minister's approval for setting the priorities of the Garda Síochána is not required. The authority should, again, be independent in its functions and should be responsible for the oversight. Amendments Nos. 141, 142, 149, 151 and 152 relate to giving power to the authority rather than to the Garda Commissioner or the Minister.

I will outline the powers that the Government would retain under the legislation. The Commissioner and deputy commissioner would be appointed and removed by the Government. The Commissioner would be accountable to the Government. Although it has been stated that the Commissioner would remain accountable to the Government on matters of national security, this is inaccurate. The original provision on accountability would not be altered. The Commissioner would remain accountable to the Minister for the performance of his or her functions and those of the Garda Síochána. This concerns all aspects of policing, not just national security. Policing plans, strategies and priorities would have to be confirmed by the Government. The Government would set security priorities and budgets. The Minister could demand any documents of the Garda Síochána and issue written directives to the Garda Síochána and the authority. CCTV schemes must be approved by the Minister. Ministerial consent would be required for GSOC to investigate the Commissioner. The Minister would decide the number of senior rank positions and consent to the number of civilian staff, the appointment of members to the audit committee and the appointment of the CEO of the authority. The Minister would decide what constitutes State security. Government consent would be required for gardaí to work in a police service in another state. The Minister would authorise the delegation of the Commissioner's functions to the deputy commissioner.

The Minister can appoint someone to inquire into any aspect of policing.

We are dealing with a group of amendments which relates to the appointment or removal of members of An Garda Síochána and its civilian staff. The Deputy is inclined to veer into other areas. We need to keep the debate focused.

It is fairly self-evident what I did. My amendments deal with seven separate issues.

The Government is severely undermining the independence of the policing authority with the powers it is retaining. Our amendments aim to give the authority the independence it needs. If these are rejected, then the Opposition could not stand over the claim that there is an independent policing authority. It is regrettable to say that because I want this authority to work. If these amendments are rejected by the Minister, then there is a big problem.

The effect of these amendments would be to remove from the Government and the Minster for Justice and Equality any role in the appointment and removal of senior members of the Garda Síochána. Legislation must be fully compatible with the Constitution. No member would wish that there would be a serious constitutional question over legislation. Article 28.2 of the Constitution 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 this Bill, the Attorney General has advised that, as a matter of custom, practice and proper constitutional interpretation, the function of the 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. While an Executive power of the Government under Article 28.2 can be delegated, the advice is that it would not be constitutionally permissible for such a delegation to amount to an abdication of the Government’s Executive power. Within this framework, the Attorney General has advised that any legislative proposal in the establishment of a policing authority should ultimately preserve the power of the Government to appoint or to dismiss the Garda Commissioner. To address the relevant constitutional concerns, the advice of the Attorney General is reflected in the Bill’s provisions. Due to the importance of their functions, a similar approach has been adopted for Deputy Garda Commissioners.

When considering the amendments, it is also necessary to take account of the fact that the Garda Síochána is the security service for the State. 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 in the Oireachtas. It goes without saying that national security is a key function of the Government. In the Minister’s view, leaving aside the clear constitutional dimension involved, the appointment of the head of the national security service should not 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 Government must continue to have the capacity to remove senior Garda members on security grounds.

While there are other issues that I might raise about the Deputies' amendments, I will concentrate on the functions that are being conferred on the policing authority by the Bill in respect of the appointment and removal of Garda personnel.

Under the Bill, the authority will have a leading role in a large body of Garda appointments. This will operate, in particular, at the highest levels of the Garda organisation and it will also have general functions in the areas of 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 authority, following an open 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. When such a situation occurs, the Government will be obliged to ask the authority to nominate another person for the position. From an international perspective, it is the general practice that governments either make or must approve top-level police appointments. For example, while the Police Service of Northern Ireland chief constable is appointed by the Northern Ireland Policing Board, the appointment must be approved by the Northern Ireland Minister of Justice. Similar arrangements are also in place in Scotland, which has a recently established police authority.

In the case of Garda personnel between the ranks from superintendent to assistant commissioner, the Bill provides that all the appointments will be made directly by the authority. Additionally, the authority will appoint persons to positions in the Garda civilian staff which are equivalent to or above the rank of chief superintendent. With regard to dismissals, and in line with the constitutional and security principles I have already outlined, the Garda Commissioner or a Deputy Commissioner will be removed by the Government. At the same time, the authority will have the power to recommend to the Government that a Garda Commissioner or Deputy Commissioner be removed for policing reasons. While the Government will not be obliged to adopt such a recommendation, it is difficult to envisage circumstances in which it would not do so.

Dismissals of persons between the ranks of superintendent to 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 Deputies’ amendments go beyond the appointment and dismissal of Garda personnel, it is important to make clear that the overall approach adopted by the Government to the Bill is that relevant functions should be transferred from the Government and the Minister to the authority where this is permissible and appropriate.

However, the transfer process has its limitations and it has to be undertaken against the general constitutional and policy backgrounds which I have highlighted. Within these frameworks, for example, the Minister cannot, for substantial legal and policy reasons, accept a situation, as proposed in these amendments, where the Minister of the day would not be involved in determining the numbers of persons to be appointed to senior Garda ranks.

Overall, the Minister appreciates the approach of the Deputies in their amendments is to remove what they perceive to be a system in which key elements could be the subject of political considerations. However, she believes the significant reforms and measures provided for in the Bill are fully adequate to address any concerns they might reasonably have and, in particular, substantial powers are being conferred on the new authority which will be independent in the exercise of its functions.

The Bill’s proposals for the establishment of the independent policing authority will play a vital role in ensuring public confidence will be maintained in the Garda Síochána and in 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 reasons I have given, the amendments do not meet these requirements. We are not in a position to accept them so, accordingly, on behalf of the Minister, I would ask the Deputies not to press the amendments.

This is an issue on which our committee did a good deal of work. We went to the North and to Scotland to examine their models and made recommendations. One of the issues we engaged with was separating policing from security responsibilities but what has come to pass now is that because An Garda Síochána is unique in the developed world in that its members retain responsibility over policing and security matters, it has led to a situation where, essentially, the Government still retains control policing elements because of the security aspect.

The Minster referred to Article 282. That article states: "The Executive power of the State shall, subject to the provisions of this Constitution, be exercised by or on the authority of the Government". I have to accept that the Minister has been advised by the Attorney General but the interpretation taken is very broad. There is little case law to aid the interpretation. It is unclear. It is a big call to make because regardless of whether we have an independent policing authority, if the Minister interprets Article 28.2, as has been done, as meaning the Minister has to retain control over all security matters in the interests of the State, and because we have a police service that is responsible for policing and security, all policing elements, therefore, are still controlled by Government. Ultimately, the policing authority has to refer. That is a big call to make. The Attorney General is in place because of her considerable legal expertise but there are other people with considerable legal expertise who would take a very different view. We have an area of conflict here, which is profound. The Minister has made a call but I believe it needs much more debate, such is the profound nature of the call.

In our hearings we debated whether we should have a separate security and policing apparatus in this State that would be accountable to these Houses, as is the case with many security services. The United States and British security services are accountable to their respective Houses of Parliament. The response given is very serious in terms of its implications and if the Minister's call is that he is accepting the advice of the Attorney General, and on that basis Article 28.2, it is open to challenge.

We will not get agreement on this today but I ask the Minister to take other legal opinions into consideration or at least take legal submissions and then put those legal submissions to the Attorney General. We will take Report Stage in the near future. I have another opinion before me from a person I respect in these matters and who has a very different interpretation. I would be happy to submit that to the Minister, and for the Minister to ask the Attorney General to respond to the issues raised. I respect the constitutional core role of the Attorney General and the advice that person gives to the Government of the day but these matters are so serious they deserve more deliberation by the Minister, with the Attorney General, based on the submissions that might be received.

I will press my amendments, and I know I will not get agreement on them, but I do not accept the analysis that has been given to the Minister. It is a serious interpretation to take because it means, essentially, that this is not an independent policing authority because we have a police service that has responsibility for security and policing matters, and that is a serious matter.

Deputy Wallace indicated on these amendments as well. To be helpful, we are discussing the appointment or removal of members of An Garda Síochána and its civilian staff.

The Minister's argument makes a very good case for separating the regular functions of policing from State security. It would require visiting the Constitution but if it means that we will never have an independent policing authority without separating the regular functions of policing from State security, the sooner a Government has the courage to do that, the sooner we will have an independent police authority, which is urgently required.

It is acknowledged that having a combination of policing and security services gives rise to certain realities. Another reality is that the Attorney General has given her interpretation of the Constitution. The Government cannot and will not ignore that advice but, to be fair, this Bill does transfer significant ministerial powers to the authority. The Attorney General is the legal adviser in this instance. She has given her advice. The Government accepts it and, consequently, this amendment cannot be accepted.

Would the Minister of State be agreeable to receiving a submission for deliberation by the Minister ahead of Report Stage?

Any Minister will take any submission on any item of legislation.

If the Attorney General receives the submission but continues to hold the position that her analysis is correct, I assume the Minister would take that guidance and continue on this course, as is the intention, but the implications are profound. We have a unique situation where the Garda is responsible for policing and security. I cannot emphasise the seriousness of that. Given the way we set up An Garda Síochána in this State, which reflected times past, we cannot take An Garda Síochána to be an independent policing service that is accountable to an independent policing mechanism. The Minister drew comparisons with Britain and the North but those comparisons are not correct because in Britain, MI5 and MI6 are accountable, as are police constabularies in different regions. That lends itself to the situation in the North also. There is a separate policing and security apparatus in the United States, which is accountable also. Our policing service will not be independently accountable because it also has responsibility for security. That is the only interpretation I can take if the Attorney General and the Minister continue to take this position. If the Minister is agreeable, I will put a submission to him when the meeting concludes. I ask him to consider it and we may be able to continue the debate on Report Stage.

I hear what Deputy Mac Lochlainn is saying but An Garda Síochána is accountable to the Oireachtas in terms of appearing before this committee. In other words, if there is an issue which is germane to this committee, we make a request to An Garda Síochána to appear before us to discuss it. Indeed, we are arranging to have the Garda Commissioner appear before us shortly. There is no issue of which I am aware that cannot be discussed here but the Government has a right to reserve to itself the security issues. I would reject the criticism in the context of the sacrifices many gardaí have made on behalf of this State and all of our citizens over the years. I would not agree with Deputy Mac Lochlainn's analysis. Notwithstanding the fact he intends to put a document before the Minister, he must accept that An Garda Síochána is accountable to the Oireachtas, that its representatives come in here and answer questions from members. This committee is the proper and appropriate authority and representatives of An Garda Síochána appear before us.

Again, I want to advise members that we are discussing the appointment and removal of members of An Garda Síochána and civilian staff. That is the issue and the context and I would ask members to remain focused on that. Otherwise we will go off on all kinds of tangents. All of the other issues Deputies are raising will be dealt with later as we go through the Bill. I am trying to be helpful here.

I wish to make a short comment on Deputy O'Dowd's point on the issue of the Garda Commissioner being answerable to the Dáil and to the Minister. Had there been a buffer between the former Garda Commissioner and the former Minister for Justice and Equality, Deputy Alan Shatter, they would both probably still be in their jobs. That is part of the problem.

With respect, Deputy, we are straying away from the issue at hand. I ask the Deputy to try to stick-----

I could not resist-----

I know but the Deputy should try to resist. He should try to focus on the amendments we are dealing with. I know from many years of experience that this is the best way of dealing with the Committee Stage debate on Bills. We must focus on the detail of the amendment. Otherwise, we get into more general discussions and end up being here all day. The detail is what we must focus on.

I wish to respond to Deputy O'Dowd's point. I said earlier - we can check the transcripts to verify this - that the dishonourable behaviour of a small minority of members of An Garda Síochána had undone the very honourable, patriotic, decent service given by the vast majority of members of An Garda Síochána. That is a stand alone statement. In terms of accountability-----

Sorry, Deputy but-----

I am responding to a point made by Deputy O'Dowd and I have a right to do that.

Yes, but the points made by Deputy O'Dowd were straying a small bit from the amendment we are dealing with.

My job is to try to help members to focus on the amendments, if I can.

Yes, but with respect, the comments were made.

They were made in respect of what the Deputy actually said.

There is no problem with the overwhelming majority of gardaí. We all live in this State and have seen the issues that have emerged since the Morris tribunal. We have seen a range of issues emerge that have been the subject of commissions of investigation, independent review panels and so forth. Unfortunately, this is not unique. Police services all over the world have these issues and I am not casting aspersions here. Our police service has a very proud history. There is no question about that. It is not unique and is an international issue-----

The Deputy has made his point.

I go back to the issue which is true independent oversight on the part of the authority. I will leave it at that and will make a submission outlining a different view of Article 28 and the implications.

I will put the question now because we have discussed this enough. Does Deputy Wallace wish to press the amendment?

Amendment put and declared lost.
SECTION 8

I move amendment No. 9:

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”.

Amendment put and declared lost.

I move amendment No. 10:

In page 8, line 9, to delete “nominate” and substitute “appoint”.

Amendment put and declared lost.

I move amendment No. 11:

In page 8, line 10, to delete “, with the prior approval in writing of the Government,”.

Amendment put and declared lost.

I move amendment No. 12:

In page 8, line 13, to delete “, with the approval of the Minister,”.

Amendment put and declared lost.

I move amendment No. 13:

In page 8, line 17, to delete “nominated” and substitute “appointed”.

Amendment put and declared lost.

I move amendment No. 14:

In page 8, line 25, to delete “for nomination by” and substitute “to”.

Amendment put and declared lost.

I move amendment No. 15:

In page 8, line 25, to delete “nomination” and substitute “appointment”.

Amendment put and declared lost.

I move amendment No. 16:

In page 8, lines 25 and 26, to delete “for appointment”.

Amendment put and declared lost.

I move amendment No. 17:

In page 8, to delete lines 27 to 41.

Amendment put and declared lost.

I move amendment No. 18:

In page 9, line 2, to delete “Minister” and substitute “Authority”.

Amendment put and declared lost.

I move amendment No. 19:

In page 9, line 3, to delete “Minister” and substitute “Authority”.

Amendment put and declared lost.

I move amendment No. 20:

In page 9, line 4, to delete “Minister” and substitute “Authority”.

Amendment put and declared lost.

I move amendment No. 21:

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”.

Amendment put and declared lost.
Section 8 agreed to.
NEW SECTION

I move amendment No. 22:

In page 9, to delete lines 15 to 32 and substitute the following:

“ “10. (1)The Authority, following consultation with the Government, may determine the number of persons who may be appointed to the rank of Deputy Garda Commissioner and, subject to this section, the appointment of a person to that rank shall be made by the Authority following consultation with the Government.

(2) The Authority shall not appoint a person under subsection (1) unless it has invited the Service to undertake a selection competition for that purpose and the Service has undertaken such a competition.

(3) The Authority shall agree with the Service the selection criteria and process that are to apply to the selection competition under this section.

(4) A person shall not be appointed by the Authority under subsection (1) unless it is satisfied that the person is suitable for appointment as Deputy Garda Commissioner by reason of his or her possessing such relevant experience, qualifications, training or expertise as is appropriate having regard, in particular, to the functions that may be assigned to a member of this rank.”.

Amendment put and declared lost.
SECTION 9

I move amendment No. 23:

In page 9, line 15, to delete “Government” and substitute “Authority”.

Amendment put and declared lost.

I move amendment No. 24:

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”.

Amendment put and declared lost.

I move amendment No. 25:

In page 9, line 19, to delete “nominate” and substitute “appoint”.

Amendment put and declared lost.

I move amendment No. 26:

In page 9, line 20, to delete “, with the prior approval in writing of the Government,”.

Amendment put and declared lost.

I move amendment No. 27:

In page 9, line 23, to delete “, with the approval of the Minister,”.

Amendment put and declared lost.

I move amendment No. 28:

In page 9, line 27, to delete "nominated" and substitute "appointed".

Amendment put and declared lost.

I move amendment No. 29:

In page 9, line 35, to delete "for nomination by" and substitute "to".

Amendment put and declared lost.

I move amendment No. 30:

In page 9, lines 35 and 36, to delete "nomination by the Authority under subsection (1) for appointment" and substitute "appointment".

Amendment put and declared lost.

I move amendment No. 31:

In page 9, to delete lines 37 to 43, and in page 10, to delete lines 1 to 8.

Amendment put and declared lost.

I move amendment No. 32:

In page 10, line 10, to delete "Minister" and substitute "Authority".

Amendment put and declared lost.

I move amendment No. 33:

In page 10, line 11, to delete "Minister" and substitute "Authority".

Amendment put and declared lost.

I move amendment No. 34:

In page 10, line 12, to delete "Minister" and substitute "Authority".

Amendment put and declared lost.

I move amendment No. 35:

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".

Amendment put and declared lost.
Section 9 agreed to.
NEW SECTION

I move amendment No. 36:

In page 10, to delete lines 24 to 27 and substitute the following:

" "11. (1)Subject to section 12, a person who holds the office of Garda Commissioner, Deputy Garda Commissioner or Assistant Commissioner may be removed from office by the Authority following consultation with the Government, but only for stated reasons, including because—".

Amendment put and declared lost.
SECTION 10

I move amendment No. 37:

In page 10, line 25, to delete "or Deputy Garda Commissioner" and substitute ", Deputy Garda Commissioner, Assistant Garda Commissioner, chief superintendent or superintendent".

Amendment put and declared lost.

I move amendment No. 38:

In page 10, line 26, to delete "Government" and substitute "Authority".

Amendment put and declared lost.

I move amendment No. 39:

In page 10, line 36, to delete "Government" and substitute "Authority".

Amendment put and declared lost.

I move amendment No. 40:

In page 10, line 36, to delete "Government" and substitute "Authority following consultation with the Government".

Amendment put and declared lost.

I move amendment No. 41:

In page 10, to delete lines 37 to 41, and in page 11, to delete lines 1 to 23.

Amendment put and declared lost.

I move amendment No. 42:

In page 10, to delete lines 37 to 41 and substitute the following:

"(2) The Authority may, following consultation with the Minister, for the purposes of subsection (1) remove from office a person who holds the office of Garda Commissioner, Deputy Garda Commissioner or Assistant Commissioner, if the reasons for the removal relate to policing services.".

Amendment put and declared lost.

I move amendment No. 43:

In page 11, to delete lines 1 to 11 and substitute the following:

"(3) A person who holds the office of chief superintendent or superintendent may be removed from office by the Authority.".

Amendment put and declared lost.

I move amendment No. 44:

In page 11, lines 12 and 13, to delete "Assistant Garda Commissioner,".

Amendment put and declared lost.

I move amendment No. 45:

In page 11, line 14, to delete "Government" and substitute "Authority".

Amendment put and declared lost.

I move amendment No. 46:

In page 11, line 23, to delete "Government" and substitute "Authority".

Amendment put and declared lost.

I move amendment No. 47:

In page 11, line 24, to delete "or 13A(1)(a)".

Amendment put and declared lost.

I move amendment No. 48:

In page 11, lines 27 and 28, to delete "Government or the Authority, as the case may be," and subsititute "Authority".

Amendment put and declared lost.

I move amendment No. 49:

In page 11, line 29, to delete "the Government or the Authority, as the case may be," and subsititute "Authority".

Amendment put and declared lost.

I move amendment No. 50:

In page 11, line 29, to delete "Government or the Authority, as the case may be" and substitute "Authority following consultation with the Government".

Amendment put and declared lost.

I move amendment No. 51:

In page 11, line 31, to delete "subsection (5)" and substitute "subsection (2)".

Amendment put and declared lost.

I move amendment No. 52:

In page 11, line 32, to delete "Government or the Authority, as the case may be," and subsititute "Authority".

Amendment put and declared lost.

I move amendment No. 53:

In page 11, line 34, to delete "or 13A".

Amendment put and declared lost.

I move amendment No. 54:

In page 11, to delete lines 36 to 39 and substitute the following:

"(7) Subject to subsection (8), the Authority shall, as soon as may be, inform the Government of a proposal to remove a person from office under subsection (1) or (4) and any related suspension from duty under subsection (5).".

Amendment put and declared lost.

I move amendment No. 55:

In page 11, line 36 and 37, to delete "Subject to subsection (8), the Government shall, as soon as may be, inform the Authority" and subsitute "The Authority shall, as soon as may be, inform the Minister".

Amendment put and declared lost.

I move amendment No. 56:

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)".

Amendment put and declared lost.

I move amendment No. 57:

In page 11, to delete lines 40 to 43, and in page 12, to delete lines 1 to 5.

Amendment put and declared lost.

I move amendment No. 58:

In page 11, line 40, to delete "The Government shall consult with the Authority" and substitute "The Authority shall consult with the Government".

Amendment put and declared lost.

I move amendment No. 59:

In page 12, line 3, to delete "The Authority shall, as soon as may be, inform the Government" and substitute "The Government shall, as soon as maybe, inform the Authority"

Amendment put and declared lost.

I move amendment No. 60:

In page 12, line 7, after "of" to insert "Garda Commissioner, Deputy Garda Commissioner,".

Amendment put and declared lost.

I move amendment No. 61:

In page 12, lines 13 and 14, to delete "and 13A (inserted by section 13)".

Amendment put and declared lost.

I move amendment No. 62:

In page 12, line 16, after "of" to insert "Garda Commissioner, Deputy Garda Commissioner,".

Amendment put and declared lost.
Section 10 agreed to.
SECTION 11

I move amendment No. 63:

In page 12, line 23, to delete "subsection (1) or (4) of section 11, the Government" and substitute "subsection (1) of section 11, the Authority".

Amendment put and declared lost.

I move amendment No. 64:

In page 12, line 23, to delete "Government" and substitute "Authority".

Amendment put and declared lost.

I move amendment No. 65:

In page 12, line 24, to delete "Government" and substitute "Authority".

Amendment put and declared lost.

I move amendment No. 66:

In page 12, to delete lines 29 to 35 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.".

(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.",

and".

Amendment put and declared lost.

I move amendment No. 67:

In page 12, line 29, to delete "The Government shall inform the Authority" and substitute "The Authority shall inform the Government".

Amendment put and declared lost.

I move amendment No. 68:

In page 12, to delete line 41, and in page 13, to delete lines 1 to 7.

Amendment put and declared lost.

I move amendment No. 69:

In page 13, line 3, to delete "Authority" and substitute "Government".

Amendment put and declared lost.
Section 11 agreed to.
SECTION 12

I move amendment No. 70:

In page 13, line 12, to delete "The Minister may, with the consent of" and substitute "The Authority may, following consultation with".

Amendment put and declared lost.

I move amendment No. 71:

In page 13, line 12, to delete "Minister" where it firstly occurs and substitute "Authority".

Amendment put and declared lost.

Amendment No. 72 cannot be moved. Deputy Niall Collins is not here.

Amendment No. 72 not moved.

I move amendment No. 73:

In page 13, line 24, to delete "subsections (3) to (9) of".

Amendment put and declared lost.
Section 12 agreed to.
SECTION 13
Question proposed: "That section 13 stand part of the Bill."

I note the section is opposed by Deputy Mac Lochlainn.

Question put and declared carried.
NEW SECTION

I move amendment No. 74:

In page 15, between lines 18 and 19, to insert the following:

"14. (1) Section 14(1) of the principal act is amended to be read 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.".".

Amendment put and declared lost.
Sections 14 and 15 agreed to.
NEW SECTION

Amendments Nos. 75, 76 and 169 are related and may be discussed together.

I move amendment No. 75:

In page 15, to delete lines 37 and 38, and in page 16, to delete lines 1 to 3 and substitute the following:

" "17. (1)The Authority shall, by order within 12 months of the establishment day of the Authority, establish a code of ethics that-

(a) includes standards of conduct and practice for members,

(b) is fully consistent with the policing principles, and

(c) encourages and facilitates the reporting of wrongdoing in the Garda Síochána by members.".

Similar to amendment No. 7, we intend to link policing principles to the code of ethics. Every effort should be made to ensure the code is fully consistent with policing principles. The 2005 Act set out that the Minister shall establish by regulation a code of ethics, including conduct and practice for members of An Garda Síochána, following consultation with the Garda Commissioner, the Garda Síochána Ombudsman Commission and the Irish Human Rights and Equality Commission and with regard to European standards. Significantly, neither this Minister nor any previous Minister has ever done this. The proposed Bill sets out that the authority shall set a code of ethics with the clause regarding breach of the code of ethics being a breach of discipline, which was included in the heads of Bill in November last but has been removed since. We have discussed this previously and my point remains the same.

Following discussions between the Minister's officials, Parliamentary Counsel and legal advisers in the Office of the Attorney General on the code of ethics provision, the Minister is satisfied that the policy objective in respect of the code is achieved in the overall substance of the final text. I have, for example, already drawn the attention of Deputies to the solemn declaration under section 16 of the principal Act which is made by each and every member of the Garda Síochána before a peace commissioner. That of itself is a clear declaration of an intention to act and behave ethically. In addition, the disciplinary process in the Garda Síochána is a formalised process grounded in regulations. Under those regulations, less serious actions such as untidiness on duty, more serious actions such as discourtesy to a member of the public and neglect of duty, and extremely serious actions such as criminal activity are all disciplinary matters.

On amendment No. 169, section 57 amends section 123 of the principal Act to require the Minister to consult the authority in addition to consulting the Garda Commissioner, GSOC and the Garda Síochána Inspectorate prior to making disciplinary regulations. This provision is particularly necessary in the context of the power of the authority to remove certain senior members of the Garda Síochána under section 10. Section 57 also deletes the provision whereby failure to comply with the code of ethics would result in disciplinary action.

The Minister is satisfied that it is unnecessary to legislate to make a code of ethics binding and to attach a disciplinary consequence to a failure to comply with the provisions of such a code. Under the current disciplinary arrangements, the behaviour that would constitute such a failure is in any event already liable to the disciplinary process. The Minister, Deputy Fitzgerald, is satisfied that the provisions at section 16 strike the right balance in the context of the existing legislative provisions relating to the behaviour of members of the Garda Síochána and she would therefore ask the Deputy to withdraw his amendments.

If the Minister's argument were correct, then the 2005 Act was wrong in asking that the code of ethics be established by regulation. It would be a big improvement if it were.

Amendment put and declared lost.
SECTION 16

I move amendment No. 76:

In page 16, to delete lines 37 and 38, and in page 17, to delete lines 1 and 2 and substitute the following:

"(8) (a) The code of ethics, established in accordance with subsection (1) shall be binding on all members.

(b) The Garda Commissioner shall take such steps as are necessary to ensure that all members have read and understood a code of ethics referred to in paragraph (a) and that a record is kept of the steps taken in relation to each member.

(c) A failure to comply with any specified provision of a code of ethics referred to in paragraph (a) shall constitute a breach of discipline in accordance with the Disciplinary Regulations.".".

Amendment put and declared lost.
Section 16 agreed to.
SECTION 17

I move amendment No. 77:

In page 17, lines 7 and 8, to delete "with the consent of the Minister".

Amendment put and declared lost.

I move amendment No. 78:

In page 17, line 10, to delete "with the consent of the Minister".

Amendment put and declared lost.
Section 17 agreed to.
SECTION 18

Amendments Nos. 79 to 82, inclusive, 88, 89 and 91 to 98, inclusive, are related. Amendment No. 80 is a physical alternative to amendment No. 79, amendments Nos. 93 and 94 are physical alternatives to amendment No. 92, and amendments Nos. 97 and 98 are physical alternatives to amendment No. 96. Amendments Nos. 79 to 82, inclusive, 88, 89 and 91 to 98, inclusive, will be discussed together. These amendments seek to remove the ministerial role from the preparation and approval strategy statements, annual plans and the setting of priorities. Amendment No. 88 is a Government amendment relating to a strategy statement.

I move amendment No. 79:

In page 17, lines 21 and 22, to delete “and with the approval of the Minister”.

The purpose of amendments Nos. 79 to 81, inclusive, is to amend the Bill so that the Minister's approval for setting the priorities for An Garda Síochána is not required. The authority should be independent in its functions and should be responsible for this oversight. This is in line with what I stated earlier. I think I have said enough already about the overall theme and will not go on any more about that. Amendments Nos. 93, 94, 97 and 98 are in line with that objective.

Amendment No. 99 seeks to provide that the authority and not the Minister may issue written directives to the Garda Commissioner. We believe that the Garda Commissioner should be accountable to the authority and that both should be independent of the Minister's control. These are very serious amendments because, based on the long list I read out earlier, if the Minister of State proceeds as he intends to, we will not have an independent policing authority and not much change other than another layer or a talk shop rather than a proper independent policing authority.

I call Deputy Finian McGrath. Sorry, I mean Deputy Wallace, who has some amendments in this group.

That is an awful mistake to make.

I am sorry; it is late in the evening. The Deputies look so alike.

If the Chairman puts that in writing, I will drag him through the courts.

The authority should not need the Minister's approval for setting priorities as regards policing services. It appears the Minister wants the authority to have no authority. In line with the proposals in the Garda Síochána (Amendment) Bill I introduced in 2013, we are not proposing that the Minister be completely excluded. There should be consultation with the Minister.

I call the Minister of State. There is a Government amendment in the group.

I ask him to respond in respect of the other amendments also.

We have been over and back on the constitutional question already. The amendments cover the setting of priorities for policing in the State, the approval of a three-yearly strategy statement for the Garda organisation and the adoption of the annual Garda policing plan. I do not propose to enter into a detailed discussion of what is involved in each of these areas, but it will be clear, on any analysis, that what we are talking about is a set of very significant functions. In this regard, Deputies will appreciate, in particular, that the setting of priorities for the Garda Síochána is a matter of the highest importance in determining how the force will operate in carrying out its functions throughout the country. These priorities, in turn, feed into the Garda strategy statements and annual policing plans, which also play a vital role in directing the Garda. 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 the legal advice provided by the Attorney General, the Minister is satisfied that it would not be appropriate for the authority to take the final decisions on the matters covered by the Deputy’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 that the approach in the Bill is the correct one. It is also our understanding that similar arrangements apply in other jurisdictions, including in Northern Ireland and Scotland. Therefore, on behalf of the Minister, Deputy Fitzgerald, I am not in a position, to accept these amendments and I would ask the Deputy not to press them.

Amendment No. 88 is a Government amendment, the purpose of which is to make statutory provision for the Garda Commissioner to provide the authority with a strategy statement for policing services for the following three years. This amendment is necessary because the strategy statement for 2016 to 2018 is currently under preparation. The requirement is that a new strategy statement be provided within six months of the establishment day of the authority and thereafter every three years from the date of the previous statement.

The authority will be independent and have a significant body of specific functions, which will include: nominating persons for appointment by the Garda Commissioner to the posts of Garda Commissioner and deputy commissioner; appointments of persons to the ranks of superintendent, chief superintendent and assistant commissioner and their removal for reasons relating to policing services; appointing persons to senior positions within the Garda civilian staff; determining, with the agreement of the Minister, Garda priorities relating to policing services; approving, with the agreement of the Minister, the three-yearly Garda strategy statement; approving, with the agreement of the Minister, the annual Garda policing plan; establishing a Garda code of ethics; promoting and supporting the continual improvement of policing in the State; and exercising the current functions of the Minister regarding joint policing committees, involving local authorities.

I also ask the Minister of State to stay focused on the amendments in question. He has strayed somewhat away from these amendments. I have to be consistent across the board here.

With respect, may I respond?

No respect or anything.

If there is a repeated allegation that it is not an independent authority, I will respond to that.

At the same time, Ministers also have to stay within the guidelines.

To be fair-----

Can we deal with amendment No. 79? Am I correct that we have finished the debate on it?

We will not change anybody's opinion. The Minister of State has come in with his mind made up. He has his speaking notes. It is very disappointing.

The Deputy also has notes.

The difference is I prepared my notes and did the research myself.

I ask that everybody speak through the Chair, please.

A Government Deputy has stated that it is absolutely grand for the Garda Commissioner to come before an Oireachtas committee and that will do in terms of oversight. It is preposterous.

May I put the question?

May I respond? I have, of course, my speaking notes and I have my own opinions, as does the Deputy. I have prepared notes in conjunction with the speaking notes as have he has and other members.

I prepared mine and that is the difference.

Order, please.

Amendment put and declared lost.

I move amendment No. 80:

In page 17, lines 21 and 22, to delete “with the approval of the Minister” and substitute “following consultation with the Minister”.

Amendment put and declared lost.

I move amendment No. 81:

In page 17, to delete lines 32 to 34.

Amendment put and declared lost.

I move amendment No. 82:

In page 18, line 17, to delete “Minister” and substitute “Ombudsman Commission”.

Amendment put and declared lost.

I move amendment No. 83:

In page 18, line 24, to delete “Minister” and substitute “Ombudsman Commission”.

Amendment put and declared lost.

I move amendment No. 84:

In page 18, line 33, to delete “Minister” and substitute “Ombudsman Commission”.

Amendment put and declared lost.

I move amendment No. 85:

In page 18, line 36, to delete “Minister” and substitute “Ombudsman Commission”.

Amendment put and declared lost.

I move amendment No. 86:

In page 19, line 2, to delete “Minister” and substitute “Ombudsman Commission”.

Amendment put and declared lost.

I move amendment No. 87:

In page 19, line 5, to delete “Minister” and substitute “Ombudsman Commission”.

Amendment put and declared lost.
Section 18 agreed to.
SECTION 19

I move amendment No. 88:

In page 19, to delete lines 8 to 10 and substitute the following:

“(a) by the substitution of the following subsection for subsection (1):

“(1) Subject to subsection (6)—

(a) not later than 6 months after the establishment day of the Authority,

and

(b) not later than 3 months before the expiry of the period to which the previous strategy statement relates,

the Garda Commissioner shall submit to the Authority for its approval (with the consent of the Minister) a strategy statement for the Garda Síochána and for policing services for the following 3 years.”,”.

Amendment agreed to.

I move amendment No. 89:

In page 19, line 12, to delete “Minister” and substitute “Authority”.

Amendment put and declared lost.

I move amendment No. 90:

In page 19, to delete lines 15 to 17 and substitute the following:

“ “(b) the priorities determined by the Authority under section 20 relating to policing services and any priorities that may be determined by the Garda Síochána Ombudsman Commission under section 20A relating to security services;”,”.

Amendment put and declared lost.

I move amendment No. 91:

In page 19, to delete lines 21 and 22 and substitute the following:

“(iv) substitute the following for paragraph (a);

“(a) the policing principles.”,”.

Amendment put and declared lost.

I move amendment No. 92:

In page 19, to delete lines 23 to 29 and substitute the following:

“(d) in subsection (4), by—

(i) the substitution of “The Authority shall, following consultation with the Minister, approve” for “The Minister shall approve”, and

(ii) the substitution of the following paragraph for paragraph (b):

“(b) with such amendments as the Authority following consultation with the Minister and the Garda Commissioner, may determine.”.”.

Amendment put and declared lost.

I move amendment No. 93:

In page 19, line 24, to delete “, with the consent of the Minister,”.

Amendment put and declared lost.

I move amendment No. 94:

In page 19, lines 27 and 28, to delete “with the consent of the Minister”.

Amendment put and declared lost.
Section 19, as amended, agreed to.
SECTION 20

I move amendment No. 95:

In page 20, to delete lines 7 to 11 and substitute the following:

“(b) in subsection (2), substitute the following for paragraph (e):

“(e) the policing principles.”,”.

Amendment put and declared lost.

I move amendment No. 96:

In page 20, to delete lines 13 to 19 and substitute the following:

“(d) in subsection (5)—

(i) by the substitution of “The Authority shall, following consultation with the Minister, approve” for “The Minister shall approve”, and

(ii) by the substitution of the following paragraph for paragraph (b):

“(b) with such amendments as the Authority, following consultation with the Minister and the Garda Commissioner, may determine.”,”.

Amendment put and declared lost.

I move amendment No. 97:

In page 20, line 14, to delete “, with the consent of the Minister,”.

Amendment put and declared lost.

I move amendment No. 98:

In page 20, lines 17 and 18, to delete “with the consent of the Minister”.

Amendment put and declared lost.
Section 20 agreed to.
Sections 21 and 22 agreed to.
NEW SECTIONS

Amendments Nos. 99 and 101 are related and may be discussed together. Amendment No. 100 is a physical alternative to amendment No. 99.

I move amendment No. 99:

In page 21, between lines 1 and 2, to insert the following:

“23. Section 25 of the Principal Act is amended to be read as follows:

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 objective of amendment No. 99 and the other amendments is to allow for the authority rather than the Minister to issue written directives to the Garda Commissioner. This is on the same theme we have been raising throughout discussion on the Bill.

The amendment concerns the requirement for the Garda Commissioner to have regard to Government policy in performing his or her functions. As mentioned in regard to earlier amendments, despite the recommendations of the Irish Council for Civil Liberties, ICCL, the removal of all references to the requirement for the Commissioner to have regard to Government policy is necessary in order to depoliticise policing. Under this proposed Bill, the strategy statement, the annual policing plan and the Commissioner in the exercise of his or her functions all retain the obligation to have regard to Government policy. We do not agree with that.

As I have said with regard to other proposed amendments, there are constitutional limitations on the extent to which it is open to the Oireachtas to make changes. In regard to the effect of amendment No. 99, this goes further than policing matters. As drafted, it would give the authority the 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 in regard to a security matter, despite the fact that such a matter would not fall within the remit of the authority's function.

Amendment put and declared lost.

I move amendment No. 100:

In page 21, between lines 1 and 2, to insert the following:

“23. Section 25 of the Principal Act is amended—

(a) by the substitution of the following section for section (1):

“(1) The Authority may issue to the Garda Commissioner written directives concerning any policing matter, and following consultation with the Authority, the Garda Síochána Ombudsman Commission may issue to the Garda Commissioner written directives concerning any security matter.”,

(b) by the addition of the following sections after section (2):

“(3) The Commissioner shall inform the Authority of the measures taken by the Commissioner to comply with a directive relating to policing matters issued to it under this section and supply the information within the time specified by the Authority.

(4) The Commissioner shall inform the Garda Síochána Ombudsman Commission of the measures taken by the Commissioner to comply with a directive relating to security matters issued to it under this section and supply the information within the time specified by the Garda Síochána Ombudsman Commission.”.”.

Amendment put and declared lost.
Section 23 agreed to.
SECTION 24

I move amendment No. 101:

In page 21, between lines 34 and 35, to insert the following:

“(ii) by the removal of paragraph (c), and”.

Amendment put and declared lost.
Section 24 agreed to.
Sections 25 to 28, inclusive, agreed to.

We were supposed to complete our business here at 7 p.m. It looks like we might go beyond that if we deal with the next two amendments. Therefore, I propose we adjourn now.

I suggest that we could deal with them and then adjourn, if that is in order.

That is fine, as it is the Minister of State we were facilitating.

SECTION 29

Amendments Nos. 102 and 103 are related and may be discussed together.

I move amendment No. 102:

In page 23, to delete lines 8 to 12 and substitute the following:

“ “(1) The Authority shall issue to local authorities and the Garda Commissioner guidelines concerning the establishment and maintenance of joint policing committees by local authorities and the Garda Commissioner.”,”.

Under the proposed legislation the authority will issue the joint policing guidelines to local authorities and the Garda Commissioner only after consulting with the Minister for Justice and Equality and the Minister for the Environment, Community and Local Government. Our amendment proposes to remove the requirement to consult with the Minister and, therefore, to give more power to the authority, which is in line with the Bill we introduced in 2013 or 2014.

The introduction of joint policing committees created a new partnership approach between An Garda Síochána, the local authorities and Oireachtas Members. I had the privilege of chairing one myself for three years when they were originally piloted and introduced under the late Brian Lenihan. JPCs now exist in each local authority area and they provide a forum for discussion of policing, safety and quality of life measures in our communities. They operate under guidelines issued by the Minister for Justice and Equality, after consultation with the Minister for the Environment, Community and Local Government.

The Bill will transfer the Minister's responsibility for the guidelines to the authority, while retaining a consultative role for the Minister.

Arising from a wide-ranging review process which commenced in 2012, and taking into account the establishment of new local government arrangements, revised guidelines for the operation of JPCs were issued in August 2014. The revised guidelines emphasise the need for collaborative approaches between all stakeholders to address local issues. Members of the Oireachtas, of course, have an involvement. The guidelines also underline the need for enhanced communication between JPCs, which have a strategic co-ordinating role, and the full range of local and community-based fora which can contribute to the enhancement of community safety and support effective policing responses.

Amendment No. 102 would remove the requirement in section 29 of the Bill for the authority to consult with the Minister for Justice and Equality and the Minister for the Environment, Community and Local Government before issuing guidelines concerning the establishment and maintenance of joint policing committees. To ensure proper co-ordination and avoid duplication of effort it is essential that JPCs align their work with the recently established local authority arrangements and, therefore, the removal of the requirement to consult with the Minister for the Environment, Community and Local Government would be a retrograde step. The effect of the amendment would be to allow the authority to issue or amend guidelines in an arbitrary manner and with no regard for any concerns arising from the remits of either of the Ministers involved.

This amendment would, in the Minister’s opinion, undermine the partnership principle that underpins the approach to joint policing committees and, accordingly, the Minister cannot accept it.

Amendment No. 103 would allow each joint policing committee to elect its chairperson from among all of its members rather than the chairperson being nominated by the local authority elected members of the JPC. The revision of the present JPC operating guidelines in 2014 was guided by extensive consultations with a broad range of stakeholders, and revising the procedures for the election of the chairperson along the lines suggested in the amendment did not emerge during the consultations as a key concern for those involved.

The essential point is that JPCs are established to enhance communication and co-operation on policing and related local authority functions in each local authority area, and therefore the Minister considers it appropriate that the chairperson should continue to be drawn from the democratically elected members for those communities and local authority areas and, within the political cycle, ultimately be accountable to the local communities for which they be the chair.

One of the main functions and principles of the policing authorities that have been established around the world is to engage the citizenry a great deal more in policing matters. My amendments attempt to do that and at the same time, obviously, to try to lessen the powers of politicians, national or local, over policing. That is the thinking behind the amendments and I will press them.

Amendment put and declared lost.

I move amendment No. 103:

In page 23, between lines 15 and 16, to insert the following:

“(ii) substitute the following for paragraph (c):

“(c) the election by the committee of a chairperson from among the members of the committee,”.”.

Amendment put and declared lost.
Section 29 agreed to.
Section 30 agreed.

The select committee must adjourn now.

When will we reconvene on Committee Stage?

We will find a time and a place. I will let members know as soon as possible. We tried to secure a slot for tomorrow morning but it was not possible.

Progress reported; Committee to sit again.

The select committee adjourned at 7.05 p.m. until 12.30 p.m. on Tuesday, 13 October 2015.