SELECT COMMITTEE ON JUSTICE, EQUALITY, DEFENCE AND WOMEN’S RIGHTS debate -
Tuesday, 27 May 2003

Vol. 1 No. 13

Garda Síochána (Police Co-operation) Bill 2003 [Seanad]: Committee Stage.

SECTION 1.

Question proposed: "That Section 1 stand part of the Bill."

Mr. F. McGrath

I suggest that the Committee Stage hearings take place in advance of the Committee Stage debate to enable the committee to consider oral and written evidence from human rights organisations in the North, including the Committee for the Administration of Justice and the Pat Finucane Centre as well as Justice for the Forgotten, the families of those killed in the Dublin bombings and the family of Eddie Fullerton and their concerns about progressing this Bill at this time. Many people are concerned. The second point I raise at this stage is that at the conclusion of the Committee Stage debate this Bill should not be referred back to the House until such time as the committee can verify that the Patten recommendations have been implemented in full and that Mr. Justice Barron can indicate to the committee that he has received total co-operation with his inquiry from the PSNI.

When discussing this Bill the committee should consider the Patten report and the Overside Commissioners report of May 2003 and I urge people to give consideration to these proposals.

Chairman

I do not know whether all of the items the Deputy mentions are pertinent to section 1 but I take on board what he is saying. In normal circumstances the committee would have committee hearings before Committee Stage. It is unfortunate that the notice of the Deputy's request did not reach us earlier. If it had we would have tried to facilitate him.

Aengus Ó Snodaigh

The notice that this was be taken on Committee Stage was issued on Friday. Yesterday was a bank holiday in the Six Counties and it was difficult to get in contact with the groups who have expressed an interest in the Bill and who expressed a wish to participate afterwards. It was too late and it is a pity because it is such an important Bill We have missed an opportunity and, perhaps, at some time in the future the select committee would consider inviting these groups to the committee to make an overall point on policing on this island.

Chairman

The committee will consider that in private session as it is of concern to all of us.

Mr. P. Power

With regard to Deputy McGrath's proposal, while we would all like to see the recommendations of the Patten report implemented as soon as possible, it may be a little unreasonable to suggest that Committee Stage should not proceed until such time as all the recommendations of the report have been implemented in full. As I understand it, this Bill is part and parcel of the Patten recommendations. Many strands need to proceed in parallel. To suggest this cannot be done until other things happen is not a reasonable way to proceed. While accepting the broad thrust of what Deputy McGrath has said - we all want to see the recommendations introduced - it would be an unreasonable way for the select committee to proceed.

Aengus Ó Snodaigh

It is part of the ongoing debate on policing and it is part of the Patten recommendations but it is not proceeding in parallel with other events. In fact, one of the Patten recommendations has been parked for the most part at present. The committee should satisfy itself that the Patten recommendations will be implemented in full and that, at the very minimum, there should be a timetable before this House which it is satisfied will result in the Patten recommendations being implemented in full. As I said on Second Stage, Patten was a compromise and was not for many people on this island the solution to policing. It is a pity we are dealing with this matter in a premature fashion. We would all like to see the policing issue dealt with properly on this island. As republicans we would like to see an all-Ireland police force but that is in the future. In the interim, if at all possible, this Bill should be delayed until such time as there is a timetable. Part of the most recent negotiations was for amendments to the policing Act and that has not yet been guaranteed even though the Joint Declaration set out that an amendment to the policing Act would be forthcoming. They were first mooted in Weston Park two years ago. That gives an indication of the type of delay in the policing debate in implementing the Patten report. That is why I say this is premature and we should not rush into it. We have dealt with Second Stage in the House. We can send a message to the British Government stating we are willing to proceed with it but only when we have a timetable for this, that and the other. That is a power we have.

The other aspect is that there was agreement at the negotiations for the Joint Declaration that there would be a definite date for the transfer of powers on policing and justice. We do not have that date yet. We should try to get a date and proceed with it on that basis.

Chairman

What the Deputy said is relevant to section 1 so far as subsection (3) states:

The text of the Agreement between the Government of Ireland and the Government of the United Kingdom of Great Britain and Northern Ireland on Police Co-operation, done at Belfast on 29 April 2002, is set out in the Schedule to this Act for convenience of reference.

The Schedule recalls the discussions that took place between the two Governments at Weston Park in July 2001, the measures announced on 1 August 2001 and the Updated Implementation Plan for the Patten Report published in August 2001. It is a matter on which the committee would look to the Minister in relation to any North-South intergovernmental or Council of Ministers meeting - or whatever is the equivalent wording - in order that the committee can have a report on it. Does the Minister of State wish to comment?

Minister of State at the Department of Justice, Equality and Law Reform (Mr. B. Lenihan)

The investigation into particular incidents and episodes in Northern Ireland is a matter for the committee and I am not expressing a view on that. We all share a concern about certain events which happened in Northern Ireland. I wish to address the specific issues raised by Deputies McGrath and Ó Snodaigh which I interpreted as an appeal for some form of delay or deferment of the legislation, rather than a disagreement with the principle of the legislation. The Patten report contained 175 recommendations, nine of which related specifically to co-operation with the Garda Síochána, and a further recommendation that the community balance at more senior ranks in the Police Service should be addressed by lateral entry from other police services. The principle of the Bill before us is to strengthen the relationship between the two police services on the island. It will provide extended opportunities for police officers in both services to enhance the safety and protection of the people who live in Ireland. Most importantly, the enactment of the legislation is a key measure towards implementing the policing principles contained in the Good Friday Agreement and the Patten report, especially in relation to improving the level of cross-community confidence in the impartiality of the criminal justice system in Northern Ireland. Both Governments are determined to continue to make progress in implementing the Good Friday Agreement.

The issue of enhancing North-South co-operation was addressed in the Joint Declaration which the Governments issued on 1 May 2003. In that declaration the Governments gave a commitment that further progress towards normal policing will include the prompt enactment of the necessary legislation by both Governments to allow for lateral entry and secondments. On the international plane, at least we have salvaged that much from the recent discussions on Northern Ireland. The Joint Declaration is part of an overall arrangement which, as the participants to the process are well aware, is described as acts of completion. When the Dáil was briefed last week on the latest developments in the peace process, the Taoiseach and the Minister for Foreign Affairs reported that despite considerable progress and advances across a range of issues in the recent talks, it was not possible at this point to achieve a final agreement on all outstanding issues in the full implementation of the Agreement.

It is important to note that the Governments agreed that those aspects of the Joint Declaration which are not contingent on acts of completion by others will be taken forward. This is an act of completion which is within our power to advance, namely, the development of lateral entry and sharing of police services throughout the island of Ireland. The Joint Declaration, which is our view on how the Agreement should be implemented, is a shared agenda for action within the Governments when they have the competence and the capacity to proceed with these matters. I appreciate there is a very fine judgment to be made here. I respect the point of view that has been advanced by the Deputies who have made this point today but the Governments also, and our Government specifically, have to make a judgment on whether doing this at this time is better for all the people of Ireland. In our judgment it is, we are committed to doing all within our own power to make rapid progress in the areas covered by the Agreement. The issues addressed in the Bill fall into this category and can be taken forward, subject to the approval of the Houses of the Oireachtas.

Taking the principle, the spirit and the mechanics provided for in the Bill in terms of the transfer of Garda Síochána to the Police Service of Northern Ireland and the lateral entry of those for promotion to positions within that service, the Government had to judge whether that was in the best interests of the people and whether it would advance their welfare and well-being, specifically in Northern Ireland but also throughout the island. Our judgment was that it would be better if we did it rather than not.

Chairman

I thank the Minister of State. Does Deputy Ó Snodaigh or Deputy Finian McGrath wish to reply to what the Minister of State said?

Aengus Ó Snodaigh

It is a point on which we can agree to disagree. We could be here all day otherwise. I did not mention any of the specific acts of the RUC and PSNI about which we have complained. I will reserve that until later points I will make to try to amend the Bill. I will not delay the committee but I will make the appeal again on Report Stage that this provision be delayed or deferred. Only five or six Members opposed it, so it will pass. The question must be asked what type of message we are sending out by rushing such legislation through at a time when the democratic process in the Six Counties is suspended.

Mr. F. McGrath

We see that the purpose of the Bill is to give effect to Articles 1 and 2 of the agreement between Ireland and the United Kingdom on police co-operation. I have a major problem with this because my confidence has been shattered over the past seven to ten days. I know from having spoken to friends who live in the North or are involved in human rights or the legal profession that they are shattered and very upset about how issues have come to light. Great damage has been done to the issues of policing and security in the North. This anger was reflected by Mr. Bradley in a discussion with the Minister for Justice, Equality and Law Reform, Deputy McDowell, on "Questions and Answers". I expressed similar views five days previously in the Dáil, and many Members did not take my views seriously. However, that night on "Questions and Answers" showed that the Northern minority was extremely angry about what had happened over the past eight to 15 days. They felt let down on the issue of policing and that the Irish Government was not strong enough in defending and protecting them.

It is a legitimate right and concern to raise when it comes to policing. I do not have confidence. I want to see the day when we will have an all-Ireland police force. That is my political vision. However, I still have major questions about people who were involved in death squads and driving mass-murderers away from arms dumps. I do not accept that as good policing and do not think I as a legislator should have to accept it.

I urge the Minister of State to bring back these strong views which represent a section of Irish society and which must be listened to carefully. I urge him as well to listen to the voices of those in the North, especially those who feel marginalised. I have met people from the Short Strand and they have told me some horrific stories about sectarian attacks and the lack of quality of policing. There is plenty of policing and guns but there is a lack of credible quality publicpolicing. I urge the Minister of State to bring back these views to Cabinet, especially to the Minister for Justice, Equality and Law Reform.

Mr. B. Lenihan

I will certainly convey the views expressed but the judgment of the Government is that we must progress this agreement as far as we can. We must shake off the pessimism and try optimism where Northern Ireland is concerned and make a judgment that the Garda Síochána can make a positive contribution in building trust and confidence in the police force in Northern Ireland. Given the history of the North since partition, who could not but fear for the future? Nonetheless, we must try to work for a better future.

The legislation provides for participation by the Garda Síochána. Looking at the history of the State, one can see the huge contribution the Garda has made in building up confidence among the public in the State and its institutions. I say that in a broad way rather than with respect to specific issues on which many of us must work as Deputies. The Garda has done a good job in the round in building up confidence and it can make a positive contribution in Northern Ireland.

Question put and agreed to.

SECTION 2.

Chairman

Amendment No. 1 is out of order because it is not appropriate to Committee Stage. The amendment would have been more appropriately tabled to the Second Reading of the Bill and moved at the conclusion of the Second Stage debate.

Amendment No. 1 not moved.

Question proposed: "That section 2 stand part of the Bill."

Mr. Costello

I apologise for not being present earlier. We are timetabled to deal with one Bill on Committee Stage while another, which I oppose, is on Second Stage in the Dáil Chamber. I had no way of knowing what speakers, if any, there were to it. Such a scenario should be resolved to our satisfaction in advance. I had to wait until the Order of Business was over before I could leave and find out from the Ceann Comhairle that a number of speakers were present. Otherwise I would not have been able to oppose the Bill.

The reason given for ruling my amendment out of order is not one of cost, which is the usual reason. The amendment is relevant to sections 5 and 6 which deal with disciplinary proceedings. If a Garda ombudsman equivalent to that in Northern Ireland were in place, we would not have to go through the cumbersome procedure outlined in the sections concerning retrospective disciplinary proceedings. Therefore, it is relevant to the content and substance of the Bill.

Chairman

I understand there is nothing in the Bill about the ombudsman.

Mr. Costello

There is about disciplinary proceedings.

Chairman

That is a matter that would have been more appropriate to Second Stage. It is contingent on something that does not exist in the Bill.

Mr. Costello

The title "ombudsman" is given to someone involved in investigative and disciplinary proceedings. We have a complaints procedure in the South but that in Northern Ireland is an ombudsman procedure. While the term "ombudsman" is not specifically mentioned in the Bill, the Irish complaints procedure is mentioned in section 5.

Chairman

Whatever about discipline, the question of an ombudsman is not included in this and should have been raised more appropriately at the conclusion of Second Stage rather than on Committee Stage. I am informed that this is not appropriate to Committee Stage and it would not be appropriate for me to break with the way business is conducted. Perhaps to facilitate the work of the committee this might be addressed on Report Stage but for now I am advised this is out of order.

Mr. Costello

I can address this under sections 5 and 6.

Chairman

So we can come back to it.

Mr. Costello

I will deal with it then.

Question put and agreed to.

SECTION 3.

Mr. Costello

I move amendment No. 2:

In page 4, subsection (3), between lines 37 and 38, to insert the following:

"(a) subject to this Act, be a member of the Garda Síochána,”.

This amendment provides that persons concerned here would have the powers, duties, obligations and rights of a member of the Garda Síochána, the right to which he or she is appointed. Will this person seconded from the PSNI be a member of the Garda or of the PSNI but not formally regarded as a member of the Garda? What is the status? Will he or she have the rights of a garda but will not actually be a garda? I seek clarification from the Minister of State. Will those from the North be gardaí and vice versa? What is the legal situation? Will members of one force not be members of another but will just have certain rights and duties? Obviously there will not be the same disciplinary procedures but there will be certain rights and duties.

The next section contains an exclusion list so this is not clear. Does the person have all the powers of a garda? Is he or she meant to be a garda or something else?

Mr. B. Lenihan

The answer on both counts is an unambiguous "yes".

From my point of view there was no discourtesy intended in commencing the discussion of the Bill if Deputies Ó Snodaigh and McGrath wished for a general discussion of a matter in the first section. I had indicated to the Chair that we should suspend the sitting and await their arrival, as they had tabled amendments.

Regarding this matter, if the Deputy examines section 3(1), the appointing section, where the Commissioner makes the appointment at the request of the Chief Constable, it makes quite clear that a member of the PSNI seconded to the Garda and appointed under the section is appointed to a rank of the Garda. The relevant words are: "appoint a member of the Police Service of Northern Ireland to a rank in the Garda Síochána".

The second subsection is also clear on the ranks in the Garda Síochána to which members may be appointed under this section and that the number of such members may be prescribed.

For that reason I see no legal or practical value in the amendment. The member of the PSNI seconded is a Garda in every sense and subject to the Garda disciplinary system. That is the system to which the officer is subject as a person holding a rank in the Garda Síochána.

The only respect in which it can be construed that the officer is not a member of the Garda Síochána is in payment. Salaries and entitlements to compensation in the event of injury will be determined by Her Majesty - a not unusual feature of history.

Mr. Costello

So they will be gardaí but not full gardaí. They will have some powers, duties and entitlements but they will not have the entitlement to compensation. That is subject to procedures——

Mr. B. Lenihan

Subsection (3)(b) states that they will have the powers, duties, rights and obligations of a member of the Garda Síochána of the rank to which he or she is appointed.

There is a right to compensation but not according to the Garda compensation——

Mr. Costello

Why does the legislation not state this categorically? Why not accept my amendment if that is what it means? The Minister of State says on the one hand the seconded person will be a member of the Garda but he will not accept the amendment.

Mr. B. Lenihan

It is superfluous.

Mr. Costello

We should put it in so we can see what it means.

Chairman

If they are being paid by and receive their pensions from Her Majesty and the gardaí are paid by the Department of Justice, Equality and Law Reform, then that is the only significant difference I can see.

Mr. Costello

This will create problems. Sections 5 and 6 deal with breaches in discipline by gardai and members of the PSNI.

Mr. B. Lenihan

The reason for payment and pension arrangements to be reserved to the sending state is to preserve pension entitlements for the office concerned. It is a practical arrangement devised to preserve the pension provisions of those seconded. It is the only practical exemption in an otherwise unambiguous section.

Mr. Costello

This is moving on to the issue dealt with in amendment No. 3. Disciplinary procedures will also be different for seconded members.

Mr. B. Lenihan

There is no distinction in disciplinary procedures. Sections 5 and 6 deal with that.

Mr. Costello

Those sections state that disciplinary procedures take place only on the expiration of the seconded period - when the three years are up.

Mr. B. Lenihan

I would prefer to address that when we come to the sections concerned. I oppose this amendment because it is superfluous.

Amendment, by leave, withdrawn.

Mr. Costello

I move amendment No. 3:

In page 4, subsection (4), line 43, to delete "The" and substitute "Save to the extent (if any) as may be prescribed, the".

I seek clarification here. All provisions should apply unless they are proscribed. Which do not apply? The Minister of State should clarify what is exempted under sections 10 and 11 of the 1924 Act as well as the 1925 Act. He has already referred to the Garda compensation Acts but he should elaborate so we know what is not granted to a seconded member.

Mr. B. Lenihan

A number of provisions in the legislation, as Deputy Costello pointed out, governing the operation of the Garda are specifically and deliberately not applied in this Bill as provided for in section 3(4). I agree with the Deputy that it would be helpful if I explained this.

Section 3(4)(a) does not apply sections 10 and 11 of the Garda Síochána Act 1924. Section 10 provides that gardaí may not resign without permission and section 11 contains provisions on the duty of a member of the Garda Síochána. Section 10 of 1924 Act provides that members of an Garda Síochána may not resign without permission and section 11 contains a provision on the duty of a member of an Garda Síochána on resignation or dismissal. While members of the PSNI who are seconded and appointed to the Garda Síochána will be members of the Garda Síochána for the secondment period, they will continue to be paid by the PSNI. It will be open to any such secondee to apply to have his or her secondment terminated and return to the PSNI in accordance with a protocol governing secondments between the two police forces which will be drawn up by the Garda Commissioner and the Chief Constable. In such cases the PSNI secondee will return to the PSNI. Sections 10 and 11 of the 1924 Act will not apply to such secondees. I could explain further but, perhaps, the Deputy might like to interject at this stage.

Mr. Costello

I am mystified by how a member of the Garda Síochána cannot resign without permission. I always thought that one tendered one's resignation and that nobody could stop one from resigning. What does permission to resign mean?

Mr. B. Lenihan

The authorities have power in that regard.

Mr. Costello

So it is like joining the priesthood, once a priest always a priest. Is it a case of once a garda, always a garda?

Mr. B. Lenihan

Permission can be granted. The Deputy will be aware that a similar position obtains in the Defence Forces. It was constitutionally tested and upheld on one occasion.

Mr. Costello

The Minister of State said my previous amendment was superfluous. Surely this type of regulation is superfluous. How can one stop a person who wishes to resign? Is the Minister of State saying members will not need permission to resign from secondment because they are exempt from that regulation?

Mr. B. Lenihan

We are not talking about regulations. This is a provision in a primary Statute, the Garda Síochána Act, 1924. Section 10 states that no member of an Garda Síochána below the rank of Chief Superintendent shall be at liberty to resign his membership of an Garda Síochána or withdraw himself from his duties as such member unless authorised so to do in writing by the Chief Superintendent of the area in which he may for the time being be stationed unless he shall give to such Chief Superintendent one month's notice of his intention so to resign or withdraw and if any such member of an Garda Síochána shall so resign or withdraw himself without such previous permission or notice, he shall be liable to a conviction of £20 or three months hard labour.

Chairman

Is it all right to do so if he gives a month's notice?

Mr. B. Lenihan

Yes, it is in order if he gives one month's notice.

Mr. Costello

Such a person is not required to give any notice if resigning from secondment?

Mr. B. Lenihan

That is correct. That is being dealt with in a separate arrangement because, intrinsically, this whole Act is a separate arrangement and a protocol will be drawn up between the Commissioner and Chief Constable to regulate that.

Mr. Costello

An ordinary serving garda currently serving under this legislation is required to give one month's notice of his intention to resign whereas a Superintendent or someone of a higher grade can resign on the spot if he or she so wishes? I presume equality legislation applies in here.

Chairman

It would not be in the interests of a Chief Superintendent to resign on the spot.

Mr. B. Lenihan

I do not wish to confirm that today. A longer term applies in relation to the Defence Forces. A garda can only be incarcerated for three days in the performance of his or her duties.

Section 34(3)(iv)(b) applies to the Police Forces (Amalgamation) Act 1925 save for regulations made under section 14. A PSNI secondee appointed under section 3 will be a member of the Garda Síochána. He or she will continue to be paid by the PSNI and be subject to the PSNI compensation scheme but will be under the direction and control of the Garda Commissioner. In this regard, such a secondee will also be subject to any regulations made under the 1925 Act relating to the duties of the Garda Síochána This relates to the maintenance, training, discipline and efficiency of the force. Section 14 of the 1925 Act relates to the internal management of the Force.

The 1925 Act is the foundation statute for the remuneration of an Garda Síochána. Section 3(4)(c) applies the provisions of the Garda Síochána (Compensation) Act, 1941 and 1945 to secondees appointed under section 3 of the Bill. PSNI secondees appointed under this section will claim compensation for injuries sustained while on secondment to the Garda Síochána under the compensation scheme which applies to the members of the PSNI. Likewise, garda secondees to the PSNI who suffer injury on duty will be compensated under the provisions of the Garda Síochána (Compensation) Act 1941 and 1945. The application referred to in this section reflects the agreed policy position of the two Governments which is to the effect that police officers on secondment will claim compensation from the scheme which applies to their own home service. The Deputy will note that section 7 of this Bill provides for the making of regulations relating to qualifications and experience required for appointment to the Garda Síochána and for any matter referred to in the Act for the purpose of giving effect to it. There is, therefore, no need for the inclusion of the amendment proposed.

Chairman

That seems reasonable.

Mr. Costello

I still think my amendment is reasonable in that no exemption would take place and a provision would not apply except that which is specifically prescribed. Provisions as contained in the old legislation appear to be rather strange. I do not know why such provisions should have been targeted. It does not make sense to refer to provisions on resignation procedures. I am sure the 1924 and 1925 Acts contain what would now be regarded as anomalies if one were to fine comb them. Who decided these three sections would not apply to the seconded person? I am sure anybody reviewing current legislation could find another six or 12 such sections that are equally anomalous in terms of their application.

Aengus Ó Snodaigh

This is a complex issue. A garda who is seconded remains a garda and a PSNI officer seconded remains a PSNI officer?

Mr. B. Lenihan

No, the opposite applies.

Mr. Costello

It does not say that.

Aengus Ó Snodaigh

At the end of the day are they answerable to the regulations of the force to which they are seconded except in regard to remuneration?

Mr. B. Lenihan

They are assimilated to the rank of whatever force they are transferred to. On Deputy Costello's point, we have gone through Garda Síochána legislation with a fine comb. There is a difficulty in imposing the 30 day requirement on a secondee. It is preferable to regulate that by the protocol to be drawn up by the Commissioner and Chief Constable. That is the view we took. We must have a protocol on secondees as to how their secondment might be terminated before time. In that context, it would seem to impose an additional burden on the arrangement to insist that a 30 day notification be prescribed to the relevant Chief Superintendent.

Mr. Costello

It might be better to amend that section or delete it altogether. The legislation contains no reference to any section which governs the PSNI or might have governed legislation in relation to the RUC, which legislation I presume has been repealed at this stage? There is no reference to any section that does not apply in existing PSNI legislation. Are we to take it that this type of requirement does not apply and that there is no distinction between the stages of promotion in the PSNI? If might be better to simply amend this section by deletion.

Mr. B. Lenihan

On the 1924 Act, I advise the Deputy that a consolidation and progressive codification of the whole corpus of Garda Síochána legislation is intended to be part of the proposed Bill which the Minister has promised on the inspectorate and wider matters. In that context, the issue raised by the Deputy can be examined. I would not like the committee to depart today with the message that the section is not necessarily essential for the maintenance of good order in the Garda Síochána. This is the police service of the State and prescription of a minimum period for departure by the great bulk of the members of the force can be viewed as an essential protection which the State might require. The issue can be revisited in the context of the consolidation which I understand is not a simple traditional consolidation exercise but a consolidation and codification of the legislation on the Garda Síochána. The issue would be open for consideration in that context.

Amendment, by leave, withdrawn.

Section 3 agreed to.

SECTION 4.

Question proposed: "That section 4 stand part of the Bill."

Aengus Ó Snodaigh

Not being a member of the committee I cannot propose an amendment but I suggest that this is an appropriate place for the Minister to include some recognition of the need for procedures to be set out to screen for people who may have been involved in the abuse of human rights in the past, whether they belong to the Garda or to the PSNI. Thankfully, the Garda has a better record than the RUC or now the PSNI. Such a measure inserted in this section would cover all appointments made under sections 2, 3 and 4. It would allow for screening to discover those who had been involved in the abuse of human rights in the past. That brings in the question of Patten which has not changed. The Stevens reports suggest that there are still serving members of what was the RUC special branch in the PSNI. What would be the case if they applied for secondment? There is nothing in the legislation to cover this. If they have not been tried and convicted there is nothing to prevent those appointments being made. There is nothing in the legislation which asks that human rights training be a minimum requirement for gardaí. At least in the PSNI a start is being made. New recruits in the Garda Síochána receive human rights training as part of their course.

This provision must be included to ensure those who have been involved in some of the worst human rights abuses in the Six Counties are not allowed to take up positions in the Garda and so continue the work they were doing in the RUC and the PSNI. If these officers were on secondment to the Garda Síochána, they would also have access to sensitive files and we all know where RUC files ended up in the past. We do not want to see that happen in this State.

I ask that the Minister consider an amendment to the effect that all appointments under these sections and secondments under sections 3 and 4 be subject to qualifications in human rights and screening for misconduct and that no officer would be deemed eligible for appointment unless they have completed an approved human rights training course within their force and that no officer should be deemed eligible for appointment if he or she is subject to an investigation or an inquiry, internal or otherwise. Such a provision would cover the Stevens inquiry because we have seen only 20 pages of a 3,000 page document. He knows who the officers are who are under investigation and the Garda Commissioner knows who is under investigation in the Garda in relation to such abuses. The public must be guaranteed that people cannot avoid these inquiries by taking up secondments for a three year period in another jurisdiction or that they would use such a secondment to further their activities.

Chairman

On a point of information, Deputy Ó Snodaigh, I understand that because the matter has been raised you are now entitled to raise an amendment on Report Stage in this matter.

Aengus Ó Snodaigh

I will do that but I want the Minister of State to take on board the point I make.

Chairman

You have made the point. Section 4 has already been agreed. Does the Minister of State wish to respond?

Mr. B. Lenihan

It will be a matter for the respective police forces to identify officers who are suitable for secondment to the other force and request their appointment to the other force. The Garda Síochána and the PSNI are examining the qualifications, experience and general suitability criteria which will apply to these secondments. A great deal of detailed discussion, as I understand it, is now in progress between the two forces. When those discussions are complete, criteria will be agreed between the two police forces to address the type of concern raised by the Deputy. The experience and qualifications necessary or desirable for secondment or appointment to the Garda Síochána may be prescribed by regulations under section 7 of the legislation. Many of the matters canvassed by the Deputy are already intended or comprehended by that section. The Deputy will note that section 7(2)(a)(ii) states, “any experience or qualification that may be necessary or desirable for appointment to any of those ranks”. Section 7(2)(c)(i) states, “Procedural matters related to appointments to ranks in the Garda Síochána, including in relation to appointments under section 2, the conduct of competitions for vacancies in the ranks concerned.” There is scope in the regulations to address many of the concerns raised by the Deputy. I will draw the point raised by the Deputy to the attention of the Minister.

Aengus Ó Snodaigh

I ask that the committee have sight of the criteria the Chief Constable and the Garda Commissioner are drawing up.

Chairman

I do not know whether that is possible. As the Minister of State said, it will be brought to the attention of the Minister for Justice, Equality and Law Reform and I am confident he will respond to the Deputy on Report Stage.

Question put and agreed to.

SECTION 5.

Question proposed: "That section 5 stand part of the Bill."

Mr. Costello

I agree with Deputy Ó Snodaigh that it would be desirable to have something specific in writing on what is in the regulations and that the Minister would elaborate to the committee on the type of criteria envisaged. Does he mean an induction course that would be introduced by regulation or a probationary period or human rights education?

Chairman

We will deal with those questions when we come to consider section 7.

Mr. Costello

I ask for clarification. Section 5 has a cumbersome and convoluted procedure to deal with breaches of discipline by persons who have been seconded. It is unusual in that any perceived breach of discipline would be liable on expiration or termination of the period of secondment to disciplinary action by the Commissioner or the Government. There is a page of material about it and about an appeal board to be established which seems to be new to the disciplinary regulations. Although I am not aware of the contents of the Garda disciplinary regulations, I doubt if it is the entirety of what is listed here. This seems like a new set of regulations under the appeal board.

The PSNI appears to be operating under very specific and modern disciplinary proceedings and the Garda is operating under its own regulations. We have seen some strange aspects of the Garda regulations in material that was forwarded to Members of this House not so long ago. In that case a member of the Garda was disciplined in a strange fashion for having brought human rights issues to the attention of Members of this House. It would be appropriate for the Minister to give some indication of what he intends to introduce. For a long time he has talked about the proposed inspectorate Bill, which he claims will be as good if not better than the regulations pertaining to the Police Ombudsman for Northern Ireland. If it is "as good as", why not make it "similar to", rather than establishing what takes up much wording in the legislation, the disciplinary proceedings and discipline, which will be postponed?

Deputy Hoctor took the Chair.

Mr. Costello

We do not know what will happen to the member if a breach of discipline occurred in the first six months. Will that member serve the next two and a half years of the three-year period with this breach of discipline, which has never been determined, hanging over him or her? While it could be a serious breach of discipline, which might not entitle the member to continue serving, it cannot be dealt with until the termination of the period of secondment. It is justice denied, so to speak, if it is justice delayed. The legislation is silent on whether that person can operate with impunity, even if he or she may have been in breach of a serious disciplinary matter.

I find sections 5 and 6, which deal with disciplinary matters, very unsatisfactory. I would have thought the Minister would have introduced the inspectorate Bill in tandem with this legislation or that he would have accepted that the new regulations, which have been established for the Police Ombudsman for Northern Ireland, would apply. They are up to date and allow for investigation of individual complaints as well as collective matters. I find this section unsatisfactory.

Deputy Ardagh took the Chair.

Mr. Costello

I tabled my amendment No. 1 to ensure that ombudsman legislation would be introduced.which would cover the disciplinary proceedings. As we are discussing cross-Border co-operation and getting the Garda and PSNI to serve in the same capacity, this would seem the appropriate time. The big issue that seems to have exercised the Minister's mind is not so much the good work, but how to handle breaches of discipline. He has had to set up a new system to deal with that which seems to be unwarranted and unnecessary. The Minister could have avoided that entirely if he had acted with a greater sense of urgency on the other legislation he promised us. He told us the inspectorate legislation would be before us by Easter. That has not yet seen the light of day and we still do not know when it will appear. This legislation came out of the blue. It was expected at some future date, but it has arrived very quickly and it would be preferable to have some of the other promised legislation in place before this.

Mr. B. Lenihan

I take it the Deputy's concern about the ombudsman is that structures similar to those applying to the Police Ombudsman for Northern Ireland would be introduced here as soon as possible. I hope I can reassure him in this regard. On Second Stage, the Minister indicated his commitment to establish a new body, a Garda inspectorate, to deal with complaints against the Garda Síochána. Preparatory work on the general scheme of the Bill to provide for this is well advanced. The Minister intends bringing this to the Government in the near future with a view to publication later this year.

Mr. Costello

We have heard that it is well advanced and will be brought to the Government in the near future many times already.

Mr. B. Lenihan

This is not intended as a criticism of the existing complaints board, which can only operate under existing law and which has been a strong advocate of change, but a recognition of the public need for reassurance that there is an independent oversight of the exercise of the extensive powers given to the Garda Síochána. The commitment in the programme for Government to give the Garda inspectorate the powers of an ombudsman will be reflected in the proposals. The Minister intends the inspectorate to have comprehensive powers of investigation equal to those that might be given to an ombudsman. At this stage the Minister sees advantage in the inspectorate comprising perhaps 3 persons supported by an appropriate staff, rather than simply one person as would be the case with an ombudsman. This should not pose a difficulty of principle for those who support the idea of an ombudsman. I hope this information will to some extent reassure the Deputy.

Chairman

I am sure Deputy Costello is reassured by that.

Mr. Costello

I am not be reassured by that. There is no sense in going on about it, as I do not expect to see it for some time and I do not believe it will have the same strength as the powers available to the Police Ombudsman for Northern Ireland.

Section 5(9) refers to the appeal board disciplinary regulations. Are these new or are they the existing regulations that operate within the Garda at present? If they are the existing ones, why are they included here and if they are new from where did they come?

Mr. B. Lenihan

The disciplinary regulations, as defined in the interpretations section, are those in statutory instrument SI 94 of 1989, so they are the current Garda Síochána disciplinary regulations.

Mr. Costello

Why does the Minister feel it necessary to detail them? Why not do as was done in section 3(4) and name the section of the Act?

Mr. B. Lenihan

The appeal board is constituted by statutory instrument, which is subordinate legislation. I understand the draftsman is anxious to restate the disciplinary sanctions in primary legislation.

Mr. Costello

He is not doing that.

Mr. B. Lenihan

He is transmuting——

Mr. Costello

He is listing the disciplinary sanctions under the appeal board but not the initial disciplinary sanctions. We do not have a list of the sanctions under the disciplinary regulations only a list of the sanctions under the appeal board. As I understand it there are Garda disciplinary regulations covering the behaviour of gardaí who are in breach of discipline. Why should the disciplinary action be listed under the appeal board and not under the first hearing?

Mr. B. Lenihan

The Deputy is referring backwards.

Mr. Costello

I refer to section 5(6), concerning the procedure under disciplinary regulations and dealing with applications to the appeals board.

Mr. B. Lenihan

With necessary modifications.

Mr. Costello

Yes. At the expiration of the period, the normal disciplinary regulations would kick in. This action will be taken by the Commissioner. That could be normal Garda discipline or it could be in the context of the complaints board. We have not got a listing of any of the other disciplinary actions or what the type of action might be. There is reference to a dismissal requirement, retirement, reduction in rank, reprimand, warning, caution and advice in the context of the appeal board. However, that is on appeal. What happens prior to that and what type of sanctions are there?

Mr. B. Lenihan

This is a new scheme. It is a stand alone disciplinary framework, as the Deputy understands.

Mr. Costello

It is a new scheme.

Mr. B. Lenihan

What is envisaged in section 5 are the procedures which will apply to breaches of discipline by a member of the Garda Síochána who is seconded to the PSNI. A stand alone disciplinary framework is provided in this regard whereby the investigation of any alleged breach of discipline by a seconded member of the Garda Síochána is carried out under the law and procedure applicable to the investigation of breaches of discipline by members of the PSNI. An appeal against or a request for a review of findings of that disciplinary process is also made under the law and procedure applicable in Northern Ireland.

That phase of the investigation is to make findings in regard to the matter. No disciplinary action may be taken against a seconded member of the Garda Síochána by the Chief Constable of the PSNI. Instead, the findings of the disciplinary investigation, or the outcome of an appeal or a review of such findings are transmitted to the Garda Commissioner, or the Government in the case of a garda of the rank of superintendent or above, for whatever action is deemed appropriate.

The disciplinary action which may be taken by the Commissioner or the Government under this section is then defined in the passage to which the Deputy has referred. The decision is taken by the Commissioner or the Government and the list of disciplinary actions are the options open to the Commissioner or the Government, as the case may be. It was considered inappropriate for the PSNI investigation to recommend the actual sanction. As I understand it, under the current investigative regulations which operate within this jurisdiction, a recommendation can and is made at the investigative phase. At the conclusion of the investigative phase, the findings are accompanied by a recommendation regarding the sanction. That will not happen under this arrangement.

The PSNI investigation, in the case I outlined to the Deputy, will conclude with definite findings of fact which will be transmitted to the Commissioner, or to the Government in the case of an officer of the rank of superintendent or above. It will at that stage be for the Commissioner or the Government to apply the sanction referred to under disciplinary action in the subsection referred to by the Deputy.

Mr. Costello

That is as clear as mud.

Mr. B. Lenihan

I am doing my best.

Mr. Costello

Regarding a breach of discipline by a garda when on secondment, does section 5 state that when the period of secondment is over he or she would be subject to disciplinary action by the Garda Commissioner or the Government? I do not know exactly what is meant by the "Government."

Mr. B. Lenihan

The Government would be involved in regard to the case of a superintendent or a garda above that rank.

Mr. Costello

The same disciplinary action would not take place if a serving member of the Garda in this jurisdiction was in breach of discipline. Does the ordinary complaints board and Garda regulations regarding discipline go by the board while this new appeal board takes a major role in disciplinary proceedings? What is this new board, where does it come from and who is on it?

Mr. B. Lenihan

This is the appeal board already established under the regulations.

Mr. Costello

Why do we not have all of the details about it?

Mr. B. Lenihan

They are in the statutory instrument.

Mr. Costello

Is this a new scheme? On the one hand, the Minister says it is a new, stand alone, defined scheme but, on the other, if the measures are not new and already exist in the regulations, why repeat them?

Mr. B. Lenihan

It is a new scheme involving the existing infrastructure. In a matter relating to penalties, we must ensure that there is statutory scope for what is done in the event of an imposition.

Mr. Costello

I do not know what the Garda disciplinary regulations are, though I am not sure whether that is to do with official secrets. However, we have a list of the appeal board regulations before us. Prior to going to the appeal board, the first hearing takes place. What are the punishments or the disciplinary action which take place when a breach of discipline is heard in the first instance, or if a person is found guilty of a breach of discipline? We are told what happens if an appeal is made to the board - the board can dismiss someone, or require him or her to resign or be reduced in rank etc. However, we are not told what the initial discipline could be. Why is the Minister telling us what can happen on appeal when he will not tell us what can happen in the first instance?

Mr. B. Lenihan

The Garda Síochána discipline regulations of 1988 are not covered by any code of secrecy but are a statutory instrument available to the public. Under regulation 25 of that statutory instrument, an appeal board is established which is referred to in this section of this Bill. Section 5 deals with members of the Garda Síochána seconded to the Police Service of Northern Ireland. The disciplinary procedures provided for in Northern Ireland can be applied to a seconded garda. However, the Northern Ireland authorities cannot determine what disciplinary action will be taken against that person. A decision on that will be taken by the Garda Commissioner in the case of a person of the rank of inspector or below in rank while, in the case of a superintendent or garda of higher rank, the decision will be taken by the Government. If the member is dissatisfied with the decision of the Garda Commissioner or the Government, the member has the right to proceed to the appeals board established under those regulations, the existence of which for the purposes of this Act is confirmed by this section.

Mr. Costello

Whether the appeals board can be established under the regulations, are the disciplinary actions which can be taken new?

Mr. B. Lenihan

They are the same as those in the current Garda disciplinary regulations. However, they require statutory restatement for the protection of the system.

Mr. Costello

It is a technical legal matter.

Mr. B. Lenihan

That is what I have argued for some time. I agree with the Deputy that it is worth clarifying the section.

Chairman

Is a breach of discipline by a PSNI officer seconded here dealt with by the Garda Commissioner?

Mr. B. Lenihan

Under section 6, the imposition of the sanction is remitted to the other jurisdiction. The findings can be made here as to the severity of the wrongdoing.

Chairman

The breach of discipline is determined by the force to which the person has been seconded.

Mr. B. Lenihan

Yes, and the severity of the breach is also determined there. However, the penalty or sanction is remitted to the other jurisdiction.

Chairman

Is there no equivalence between the two police forces in regard to the sanctions?

Mr. B. Lenihan

Not at this point.

Chairman

Is there great differentiation?

Mr. B. Lenihan

There is not huge differentiation but there is some.

Mr. Costello

On section 5, if there is a breach of discipline at an early stage a person will remain a serving member of the Garda or PSNI for a subsequent two and half years as it is not possible to exercise disciplinary action until after the period of secondment has terminated. If there is a serious breach of discipline a person will continue in situ in uniform. Section 5 is silent on action to be taken in the intervening period.

Mr. B. Lenihan

I apologise. I should have replied to that point when the Deputy raised it in his opening comments. I omitted to.

Under section 3(5), the Commissioner or the Government can terminate an appointment. Section 4(2) allows the Commissioner to terminate a secondment. Deputy Costello has raised the concern that no disciplinary action can be taken in respect of a Garda who is found to be in breach of discipline six months, for example, into his or her term of secondment to the PSNI until the full three-year term of the secondment has finished. It has been said that in the case of the converse, whereby a PSNI member was seconded to the Garda, our hands would be tied. It is not the position that no disciplinary action can be taken in terms of a secondee who has been found to be in breach of discipline until the full term of the secondment has been completed. It is open to the Chief Constable or the Garda Commissioner to terminate a secondment at any stage if circumstances are considered to warrant that course of action. It is open to the Chief Constable of the PSNI to terminate a secondment and return a garda secondee to the Garda at any stage during the secondment period. That does not prejudice the disciplinary procedure. An investigation can take place in the instance of the termination by the PSNI within the Northern Ireland system. The question of the penalty is then remitted to the Garda Commissioner or the Government and the appeals procedure, which the Deputy explored very carefully earlier, is triggered.

Question put and agreed to.

Sections 6 to 8 inclusive, agreed to.

SECTION 9.

Question proposed: "That section 9 stand part of the Bill."

Aengus Ó Snodaigh

I wish to make a point similar to the one I made at the outset as this may be a more appropriate time at which to raise it. This Act, once passed, will not come into operation until such point as the Minister may appoint, by order. I asked earlier that the facility be there for a Minister to delay filing the order. We still would be in compliance with our duties under the Good Friday Agreement and the Patten report in that we would have passed the Bill even if the order were not made. The order should not be made until such time as the report of the independent commission on policing - the Patten report - has been fully implemented. If anyone wishes to see where Patten is at, the office of the oversight commission has gone through every recommendation and has found that only 11 of the 175 recommendations have been definitively signed off on. Of the 175, 89 were rejected. We are a long way from seeing the Patten recommendations implemented, which is the point I was making earlier. The Minister should facilitate that delay.

Mr. Costello

I support Deputy Ó Snodaigh on this important point. We should establish an induction procedure here and in Northern Ireland and, particularly, for PSNI personnel coming to the Republic. Given media reports of the level of collusion which took place, while accepting the changes which have been made with the Patten recommendations and the greater numbers from both traditions joining the PSNI, we should ensure that the highest standards operate, especially in terms of human rights. It is also important to consider that our police force does not operate standards of transparency and accountability which are as high as those of the PSNI. It cuts both ways. Some induction procedure should be spelled out in regulations by the Minister prior to our agreement of the legislation.

Mr. B. Lenihan

I understand the discussions taking place between the PSNI and the Garda include references to induction procedures and human rights training. I reassure Deputies that those matters are very much on the agenda of the discussions. The general course of implementation of this measure is the matter in terms of which it was best for Deputy Ó Snodaigh to voice his reservations, as he correctly pointed out. It is open to Deputies to table an amendment to the relevant section on Report Stage. The issue has been signalled by Deputy Ó Snodaigh, but I prefer to leave it to the Minister to deal with on Report Stage.

Question put and agreed to.

First Schedule agreed to.

Title agreed to.

Chairman

I thank the Minister of State at the Department of Justice, Equality and Law Reform, Deputy Brian Lenihan, and his officials for attending. I thank Deputy Ó Snodaigh, who is not a member of the committee, for participating in the meeting. He is very welcome.