I welcome the Minister, his officials and my colleagues.
Criminal Justice (Joint Investigation Teams) Bill 2003 [Seanad]: Committee Stage.
Section 1 agreed to.
SECTION 2.
I know the Acting Chairman will tell me my amendment is out of order.
Yes.
Before she does so I will explain it briefly. If any of these extra investigations take place and extra expenses are incurred by the Garda, we need to make sure we have enough resources to cover it. As things are now, the Garda is stretched to the limits. Many gardaí were brought to Dublin at the weekend for a special occasion and the countryside was virtually garda free. Fortunately, vandalism did not break out as a result.
The Government establishes new powers and functions all of the time. During the years local authorities were given additional responsibilities but the necessary resources were not made available. This Bill will commit Garda resources to joint investigations. The Minister should ensure additional resources are allocated to ensure the job is done competently. We all want the job done but not at the expense of another area. My amendment would see a report prepared where the Minister would state that he was including additional resources in the annual Estimates on the basis that the Garda would need them to implement the Bill.
Since the Deputy referred to the weekend's activities, I express our gratitude to, and congratulate, the Garda Síochána for the magnificent professional job it did in providing security in Dublin city for the May Day events. I thank the force for the kind and reasonable way in which its members conducted themselves and the effective way in which they confronted violence when offered to them. The country is grateful to the Garda for what it has done.
I was surprised that the Deputy's amendment was ruled out of order but I am bound by the Chair.
Will the Minister grant extra resources?
In the interests of clarity, amendment No. 1 proposes inserting a new section requiring the Minister to report to Government on the projected costs of operating the Bill with specific reference to the adequacy of Garda resources in that context. The effect of the amendment would be to insert a section which would require the Minister to provide information more properly obtained by other means. In addition, it appears that Deputy McGrath's intention is to seek additional Garda resources, as stated in the side note to his amendment. If the Minister were to act on this, it would have the potential to increase the charge on the Revenue arising from the Bill. The amendment must, therefore, be ruled out of order as it involves a potential charge on the Revenue and is merely declaratory in nature.
Amendment No. 1 not moved.
As amendment No. 3 is consequential on amendment No. 2, they will be discussed together.
I move amendment No. 2:
In page 4, subsection (1), line 40, to delete "Subject to subsection (2),”.
The Minister has established that the Garda Commissioner is the competent authority to deal with various items under the Bill but in this section he states that in dealing with requests from other countries, the Minister is the competent body to deal with them. Why must the Minister be involved? It is better that one competent authority deals with requests and that there is direct contact between police forces rather than involving the Minister. There should be direct contact with the Garda Commissioner, not the Minister, in the interests of getting the job done.
I support the amendment. Why is there not a standard competent authority across member states? Do we know who the competent authority will be in other member states and the accession countries? How many states have signed up to this legislation? It has been in gestation since 1999 and there was agreement that it would be passed by last year at the latest. How many countries still remain to pass it? Last year when the Minister was discussing the legislation for European arrest warrants, he assured us that by this month every country in the European Union would have signed it into law. At that time there were eight countries which had done so. How many have now done so? This legislation involves co-operation between the member states in an important matter but there are question marks over the sincerity of member states in passing it and the reason there should be different competent bodies.
I can see how it must be painful for Deputies McGrath and Costello to deem me competent in anything.
The Minister should not tempt us.
I will be deemed competent.
The Minister will only be "deemed" competent.
As I explained when the matter arose in the other House, other member states, in accordance with their legislative or constitutional arrangements, require and have named judicial authorities rather than chiefs of police as their national competent authority for the purposes of the legislation giving effect to the framework decision. In many cases those member states which have nominated a judicial authority as their competent authority can and will refuse to send requests to or accept requests from the Garda Commissioner. Austria has named the federal Minister for the Interior as its competent authority while Italy has named the Minister for Justice and Portugal its Attorney General. For that reason, the Minister must be designated as a competent authority for the purposes of this Bill if the framework decision is to achieve its objective of combating cross-border and international crime. I do not want any extra work but we are ensuring there can be no bar to the establishment of a joint team because we fail to make adequate provision in our law for the investigation teams to be established. I have been nominated solely as the competent authority to enable us to do business with those member states which will not recognise the Garda Commissioner as an equivalent competent authority in implementing the legislation. There is nothing unusual in this approach. I am also deemed the competent authority in this and other member states in the context of dealing with mutual legal assistance arrangements. The responsibility for setting up joint investigation teams will always rest with the Garda Commissioner.
On the basis of the latest information available, Britain, Portugal, Finland, Spain, Sweden and Austria have implemented the framework decision. In Austria's case, existing legislation from 1997 was amended to allow it to do so. The Netherlands, France, Belgium and Italy have almost completed their parliamentary procedures and hope to be in a position to enact legislation shortly. In Germany legislation is unnecessary, while Luxembourg and Greece have not yet transposed the decision on joint investigation teams and are only at the drafting stage.
The recently appointed European Co-ordinator on Anti-Terrorism, Mr. Gijs De Vries, has indicated that he will attend the Justice and Home Affairs Council Meeting in June, effectively to issue an end of term report. He will exert significant pressure on any countries which have failed to implement the arrest warrant or this legislation. In that context, I am anxious to secure passage of this legislation as quickly as possible.
In that context, is the Minister saying the Minister will be the competent authority in every member state? If not, he is saying the Minister must be the competent authority here because other states will not deal with the Garda Commissioner in that context and will not be able to handle matters unless the Minister is the competent authority. If that is the case then every member state will have to have the relevant Minister as the competent authority. If other states will not deal with the Garda Commissioner then they will not deal with his or her counterparts in some other countries.
How is that going to work across all states? As the current Chairman of the Council, is this a matter the Minister will need to bring to the Council's attention in order to standardise the procedure so that warrants do not fall simply because not all of the competent authorities will deal with each other?
All member states are making their legislation fully interoperable. The subsection the Deputy's amendment proposes to remove states, subject to subsection (2), the competent authority is the Garda Commissioner. However, subsection (2) provides that where the competent authority of another member state requires a request to it or from it to be made or received by a judicial authority, as a matter of its law, I should be the competent authority in regard to that matter. That is the way we operate.
We do not operate judicial authorities in the same sense that they do, but if they have a system which refuses to deal with the police and requires investigative persons who are performing a different function under their constitution, I will be the corresponding body. In general terms this will make no difference. Subsection (2) was inserted purely to accommodate other state systems and make sure——
In effect, the Minister is saying it is only in special circumstance that he will be within the loop. In most circumstances it will go directly to the Garda Commissioner.
Yes, that is right.
On a point of information, does the Minister have the figure for the number of countries that have transposed the European arrest warrant into law?
I think between 12 and 15 have done so. We are very nearly complete. Greece and Italy are the two remaining countries to do so.
I presume the other ten will be busily doing the same.
The other ten are required to have done so on accession.
Amendment, by leave, withdrawn.
I move amendment No. 3:
In page 4, lines 44 and 45 and in page 5, lines 1 and 2 to delete subsection (2).
Amendment, by leave, withdrawn.
Section 2 agreed to.
SECTION 3.
Question proposed: "That section 3 stand part of the Bill."
In the context of section 3, I raised a question on Second Stage. As far as I am concerned section 3 does not foresee conditions under which bringing other police boards onto the joint investigation teams is prohibited. The same goes for section 4. One might wonder how this would arise but it does so because the Bill contains a flawed presumption that all EU police and intelligence forces are democratically sound and can be trusted not to violate human rights.
One of the issues that keeps coming up is that when legislation which has implications for human rights arises, the Minister does not check with the requirements under section 8(b) or ask human rights bodies for their opinions. He does not have to agree with their opinion but this committee should hear from such bodies as the Human Rights Commission, Amnesty International or the Irish Council for Civil Liberties. Even at this late stage I ask that such bodies be asked to come in and make their opinions known on this legislation. It is a bit late at this stage and we should have asked them before Committee Stage whether they had an opinion.
Amnesty International did issue a report prior to the EU Presidency in which it pointed out that 13 of the then 15 EU member states were cited for perpetrating abuses of human rights within their own territories. I seek conditions to be laid down whereby we would not co-operate in such joint investigation teams in the event of concerns in regard to human rights. This would give the incentive to those 13 countries. I do not have figures in regard to the ten new members, but with regard to the likes of ourselves, Britain, Austria, Greece, Italy, Portugal and so on, it is important that we raise these concerns when requests are made for joint investigation teams.
It might be a mechanism to encourage these countries as well as ourselves to get their house in order. I know we are taking steps through the Garda Bill which the Minister has proposed and maybe the other countries might do the same. When requested, countries should be able to produce police and documentary evidence to indicate that incidences of human rights breaches are being looked at through a human rights commission similar to our own or whatever mechanism a particular country has. We or the Minister can then be satisfied that, having taken all of the relevant matters into account, the joint investigation teams should be allowed to go ahead. I am in favour of such mechanisms going ahead but we must ensure we get them right from the start.
I note the Deputy is not in favour of such mechanisms going ahead in the first place——
I concluded by saying I was in favour of such mechanisms going ahead. I also said that in press releases and on Second Stage.
I am sorry, I misunderstood the Deputy. Of course complaints are made against police forces from time to time and it is for every democratic state to ensure they are properly investigated. However, we cannot have a situation whereby police co-operation in Europe fails simply because complaints are made against police forces or because a handful of people in any particular police force have behaved improperly.
This is a measure to bring about co-operation between the police forces in the European Union in order to protect citizens of the European Union from transborder crime. If it ever got to the stage that the police force of any member state was hopelessly corrupt, that state can be dealt with under justice and home affairs matters. There is specific provision in the treaties for a country in those circumstances effectively to be excluded from the operation of the JHA mandate. I do not think such a situation exists in regard to any of the relevant police forces.
Nothing obliges Ireland to participate in any such arrangement. It is a voluntary power. Foreign police officers will be operating or assisting in a secondary role. They will not be the primary investigators under Irish law. There is no question of them being out of control in the sense that the Garda cannot contain the issue.
I hope the input from the Deputy will not delay the implementation of this. I am of the view that if we have international terrorists, criminals, drug dealers or whatever they should be dealt with by a cross-border joint investigation team. This is what this legislation proposes to set up. I welcome on board the Deputy in terms of human rights. Some of us have noted our history in recent times and I am glad Sinn Féin has come on board in terms of human rights and that people would have a right not to be persecuted, terrorised and so on. It is nice to welcome the Minister to the real world and I hope anything he will say today is not intended to delay the role this legislation can play throughout Europe.
Question put and agreed to.
Section 4 agreed to.
SECTION 5.
I move amendment No. 4:
In page 7, subsection (1), lines 5 to 7, to delete all words from and including "if" in line 5 down to and including "Authority" in line 7 and substitute the following:
"for such periods not exceeding its duration since establishment, or if the circumstances so require, for such periods as may be agreed by the Competent Authority in consultation with the Minister".
I am anxious to have an amendment inserted whereby an extension of time would not exceed the original duration set out in the agreement for an investigation or that the Minister would start afresh or come back with a new mandate for it. In other words, it should not be possible to extend the time available repeatedly but the agreement should be reviewed if it is likely to exceed its deadline with the original investigating team. The Minister might bear this in mind.
I do bear it in mind but we need maximum flexibility. For instance, if a team is established for a period of one month and it becomes apparent shortly thereafter that it is required to stay in existence for four months, there is no reason to have a succession of one month extensions. It is better to leave the text as it is.
I do not wish to impede an investigation in any way but I would not envisage something established for a period of one month being extended on a monthly basis. My concern is that something established for a period of one or three months would drift towards a longer period without an overall review of its progress. Instead, the team should come back for a full review to the competent authority when a request for an extension is granted in order that it does not roll on forever as can happen under the present arrangement. The Minister should undertake a review when the duration of the original agreement expires.
There seems to be a fear that the Bill will impose a great strain on resources and involve a large cost to the State. Joint investigation teams de facto are not a new phenomenon. They have been an informal feature of international co-operation for many years. The Bill is providing a structured agreed framework for establishing such teams and is needed, especially in the EU context. We could establish a joint investigation team tomorrow with anybody we like, and frequently do, but other member states of the European Union have a more hidebound approach to procedure to the effect that anything not specifically authorised and controlled by legislation cannot happen at all. We take the approach that one can do something unless it is unlawful. It is likely that the current practice of informal teams will continue and that formalisation will come into play only when it is necessary for some specific reason such as the identity of the participating police force.
Joint investigation teams will be established only in exceptional circumstances. Under the Garda Síochána Bill which I have tendered, the Commissioner is becoming Accounting Officer and will in most cases be the competent authority. He will look at his budget and decide whether an investigation is a waste of money and whether he should recall his members of the team from Paris or Madrid or wherever they may be. I would prefer to leave it on a flexible basis rather than a hidebound one.
Deputy McGrath may be interested to know that on 8 May 2003 the Council of Europe adopted a Council recommendation on a model agreement for setting up a joint investigation team which does not limit the periods of extension in the manner sought by him but instead provides that the expiry date stated in the agreement may be extended by mutual consent of the parties. If I were to accept his amendment, I would be running counter to the Council of Europe's recommendation on the agreed model.
This recalls Alice in Wonderland, a period is unlimited when it may be extended for as long as is necessary. It seems that words mean whatever the Minister wants them to mean. This issue gives rise to the possibility of establishing a standing joint investigating committee in the manner set out with no in-built review. If the Minister sets up the committee as the competent authority, will he entrust gardaí with the responsibility of regularly monitoring it or must it come back to him to assess whether the resources and the manpower are being used properly?
On that basis the Minister said this is already happening on an informal basis over several years whereby joint investigation teams operate. Have they ever been reviewed or is there any report to the Minister on how they work, their competency, the results of their work and the resources involved in running them? Deputy Costello is right to say that from time to time such teams need to be reviewed to see exactly how they are working.
Perhaps but the present flexible process works fairly well and trying to plan in advance for strict time limits and limiting the length of investigations is not necessarily beneficial. Police forces naturally tend to participate in such teams for the minimum period necessary to achieve their ends but there have been occasions when very successful investigations leading to criminal convictions have been assisted by informal joint investigation teams. I do not know whether they represent good value for money. If they produce good results, I suppose they are.
The Garda Síochána is involved in 12 joint investigations, four in respect of subversive terrorist-related activity and eight in respect of serious or organised crime. One, for instance, was Operation Mainsail in 2000 into a bomb explosion at Ealing Broadway in London — a man was arrested in this jurisdiction in possession of a telephone used for the bomb warning. One person has been convicted in this jurisdiction in connection with the Omagh bombing in 1998 and a prosecution is pending in Northern Ireland. Operation Syndicate involved a group of well-known Irish criminals who were identified and discovered to be working in conjunction with criminals from the United Kingdom, Spain, the Netherlands and the United States. Drug seizures were made and eight persons were arrested in this jurisdiction as a result of that operation. Following the tragic discovery at Drinagh, County Wexford of eight bodies and five survivors in a container from Belgium, a joint investigation team was set up between the Belgian authorities and the Garda into the trafficking of human beings which has led to at least a prosecution, if not a conviction, in the Belgian courts.
The joint investigation teams work. As the examples I have given demonstrate, it is a very flexible formula that handles offences ranging from drug dealing to bombing, to murder and people trafficking.
The information that the Minister has just given puts flesh on the bones of the matter.
It is all available in a reply to a parliamentary question if sought. To quote the Deputy's former leader, if one asks the right question, one gets the right answer.
One does not always get it.
It reinforces the argument that the authority's operations should be reviewed and the findings published.
I do not want a situation where something falls apart due to the expiry of the time limit in circumstances where some technicality was not followed in extending it. I do not want to introduce new constraints which are unnecessary into an area which is already functioning well.
Amendment, by leave, withdrawn.
I move amendment No. 5:
In page 7, between lines 8 and 9, to insert the following subsection:
"(2) Each joint investigation to be established under this Act shall be costed by the competent Authority prior to establishment.".
This amendment seeks to ensure investigations do not run on, incurring large costs, with resources taken up which may be better used. When investigations are established, guidelines for their duration and costs should be drawn up. The Garda authorities should plan the direction of investigation and resource availability.
I favour the need for economy and the rational allocation of resources. However, if there was a joint investigation team into the Omagh bombing, a pre-estimate of its costs would be either fanciful or a stab in the dark. At the beginning of an investigation, how can one know how much it will cost? It is a condition precedent on the establishment of a joint investigation team that a costing be carried out. How could a competent authority work out that, say, an Irish-Portuguese joint investigation could cost €30,000 without knowing how the investigation would progress?
I welcome the spirit of the amendment, which reminds those involved not to waste money. However, making it a legal condition precedent that an accounting exercise must take place before the beginning of an investigation begs the question what value is put on a criminal conviction in, say, the Omagh bombing case? How can it be predicted in advance how long it would take to secure a conviction? The competent authority could be open to the accusation that it refused an investigation on the basis that it was too expensive. Victims of crime could then claim that the authority walked away from the case because money was a constraint. I prefer to keep the existing text in the Bill.
That might be the case in those instances cited by the Minister. However, at what stage are detectives asked what they can show for an investigation? Human nature being what it is, some may think they have a handy number in an investigation without a review mechanism.
They could keep ploughing away on the Costa del Sol.
They could do so for a long time. The amendment seeks to insert a mechanism whereby the Garda authorities will review progress in investigations. I accept that an investigation could be wound down on Friday, while the breakthrough could come on the following Monday. However, there must be some way of reviewing investigations to ensure resources are not used in the least effective way.
Under the new police Bill, one of the Garda Commissioner's functions will be to ensure that the force's activities are run in an economical and sensible way. That responsibility will fall to the commissioner as accounting officer under the new dispensation. It already falls to him de facto as he currently has accounting responsibilities in terms of resources. Legislating for good value in this way is not necessary because the Garda Commissioner under new legislation will be the Accounting Officer and will be obliged by statute to bear in mind the need for economy of resources and to maximise the effectiveness of Garda operations. If an officer is participating in a joint investigation on the south coast of Spain of expatriate Irish drug warlords for six months, the commissioner may arrive at the conclusion that the officer was on to a good thing and drinking——
The commissioner could also go on a fact-finding mission.
It is up to the commissioner to decide. Putting it into legislation will not bring it about.
The amendment aims to make the competent authority — the commissioner — review investigations.
Yes, but the commissioner does that in effect. The Garda Commissioner operates in accordance with the budget and will soon be the de jure, as well as the de facto, Accounting Officer for Garda resources. The commissioner will not throw money at some officer drinking sangria, watching the boats in Marbella, but instead will ask for value for money.
Amendment, by leave, withdrawn.
I move amendment No. 6:
In page 7, subsection (4), lines 19 to 39, to delete all words from and including "if" in line 19, down to and including "be" in line 39 and substitute the following:
"on such terms and conditions as the Competent Authority may, subject to this Act, agree with the competent authorities of those Member States if the Competent Authority is satisfied that—
(a) the conduct being investigated by the team is either—
(i) conduct which would constitute an offence if it occurred in the State and it has occurred, or there are reasonable grounds for suspecting that such conduct has occurred, partly in the State and partly in another Member State or States, or
(ii) conduct which would constitute an offence if it occurred in the State and it has occurred, or there are reasonable grounds for suspecting that such conduct has occurred, in another Member State or States and the investigation of it has links with the State,
and
(b) there are reasonable grounds for believing that it is in the public interest, having regard to the benefit likely to accrue to the investigation into the conduct concerned, to agree to the State joining the team because—
(i) part of the investigation is being, or it is anticipated that it will be,".
This amendment is to accommodate the proposals of an Opposition amendment on Report Stage in the Seanad. The office of the parliamentary counsel has reflected on the proposed Opposition amendment and this amendment will provide additionally for the State to join a team already established on such terms as the competent authority may, subject to this Bill, agree with the competent authorities of those other member states. This will bring the provision in section 5(4) into line with the principle in section 5(5), whereby another member state may join a team already established by one member state, including the State, on such terms and conditions as its competent authority may agree with the competent authority of the Irish State or authorities of the other member states concerned. It is a drafting amendment to improve and make uniform the basis on which people join joint investigation teams after they are established.
Amendment agreed to.
Section 5, as amended, agreed to.
SECTION 6.
I move amendment No. 7:
In page 8, between lines 36 and 37, to insert the following subsection:
"(3) Where a person is appointed by the Minister to be a member of a joint investigation team pursuant to subsection (2)(c), he or she shall be deemed to be an officer of the Minister for the duration of his or her membership of the team.”.
It seems to me that the various categories of people who would be on that team, including officers of the Customs and Excise and the Revenue Commissioners and gardaí, are all public servants with the exception of the one other person who, in the opinion of the Minister, has experience or expertise relevant to the investigation concerned. That seems to leave the option open to employ any private person, such as an expert in computer technology, for example.
Under what conditions will such people be accountable? Would it not be simpler if they were subject to the same rules and regulations as officers of the Garda and deemed to be officers of the Minister for the duration of their membership of the team? How will they be treated? Will they be amenable to the Garda Commissioner if they are not members of the Garda or public servants? Will an entire category of freelance private investigators be created under this legislation who could be called on when the Minister wishes to establish a joint investigative team? What levels of accountability will operate in this respect? These levels are quite clear for the Garda, as they are for the Customs and Excise Commissioners, and perhaps the Minister might comment on that. Accountability levels seem quite vague in the category of individuals who might be recruited on the basis of their experience or expertise.
The purpose of making such a person an officer is to bring some element of accountability and responsibility to the area. If someone acts as part of a joint investigation team on behalf of the State and is appointed by the Minister, the State will be vicariously liable for that person and accountable in Parliament for how he or she carries out his or her functions. I do not propose to appoint these people as civil servants. Maximum flexibility is what is required. If we must produce an expert on holograms in a forgery case, for example, I do not want to appoint that person an officer of the Minister because I do not know what that might involve. The person might be involved only in a minor aspect of the investigation, and making the person an officer might have all sorts of implications for removing him or her from the investigation, and so on.
Would I have to go through natural justice in dismissing an office holder? Many different issues are involved, and I prefer to leave the matter as it is, flexible though it may appear, because I believe sufficient control is in place. In any event, an investigation conducted in Ireland is always subject to the control and management of the Garda Síochána. There is no question of some civilian taking over the investigation.
My concern involves the standard of behaviour because there will be one standard for those members who are public servants and no standard assigned to those who are not public servants. The matter raises questions of standards of behaviour and of accountability. The team members will operate under the auspices of the Garda Commissioner but will not be police officers. It is difficult to envisage the sort of no-man's land in which they will operate. If they are recruited because of a particular expertise essential to the investigation, they will operate side by side with officers who are also on the joint investigative team. To what extent will they take the same orders and directions given to Garda officers who are subject to various codes of discipline and conduct? While I understand what the Minister says about having optimum flexibility in terms of recruitment and expertise needed, one must consider that these people will be going abroad and may well be freelance operators with their own code or none at all. That may give rise to problems as to how they will respond to direction.
The explanatory report to the EU convention on mutual legal assistance states that paragraph 12 of the provisions in that convention dealing with joint teams, on which this framework decision is based, "paves the way for the appointment of persons who are not representatives of their competent authorities to take part in activities of the team". I direct Deputy Costello's attention to section 7 of the Bill, which states that when the team performs its functions within the State, it must carry them out "in accordance with the law of the State", and when it is performing functions, it shall "operate under the control and general superintendence of the Commissioner". The team is subject to Garda control, and that is enough.
It is not very clear.
Amendment put and declared lost.
Question proposed: "That section 6 stand part of the Bill."
I am slightly confused by section 6(2) in which the phrase "the Minister may, after consultation with the Commissioner, the Minister for Finance and other Ministers of the Government (if any) ..." is used. Since the Minister exists, and obviously there is a Government, I do not know why the words "if any" appear there. I will probably return to that section on Report Stage with amendments, but the ministerial discretion allowed with regard to these appointments is too wide. The other appointments are of gardaí who have operational expertise and so on.
I will give an example. Regarding corporate law, it might be necessary for me to contact the Minister for Enterprise, Trade and Employment. If we were discussing cattle smuggling, I might contact the Minister for Agriculture and Food. I am required to consult people whom I consider appropriate so that if there are officers of any other Minister of Government who should be on the team, they should be put on the team, such as an authorised auditor under the Companies Act, for example. I could imagine officers being appointed for different purposes by various Ministers. For example, regarding the sinking of a car ferry, the Minister for Communications, Marine and Natural Resources might suggest someone for appointment to a joint investigative team.
The procedure may seem a bit loose, but it is designed to be flexible to ensure that I consult appropriate people and do not surprise my colleagues by appointing teams which trespass in their areas of competence without giving my colleagues the opportunity to have people appointed.
My query related to the words "if any", which suggest that a Government does not exist. I have no problem regarding consultation with Ministers. If would be good if all appointments were made by consultation with the other Ministers, as appropriate, and with other bodies because the appropriate competence might not be in the Minister's Department but within another body.
The phrase "if any" relates to such other Ministers of Government as I consider appropriate. We are concerned with the commissioner and the Minister for Finance. We are dealing first of all with three categories of people set out in section 6(2)(a), (b) and (c), namely, officers of the Customs and Excise, officers of the Revenue Commissioners or of the Minister or any other Minister, and other persons who, in the opinion of the Minister, have experience or expertise relevant to the investigation concerned. I must therefore consult the commissioner and the Minister for Finance and any other relevant Minister before I appoint anyone. That is a reasonable formulation.
Question put and agreed to.
Sections 7 to 9, inclusive, agreed to.
SECTION 10.
I move amendment No. 8:
In page 13, line 35, after "2003” to insert the following:
", or
(d) in such other circumstances as may be determined by the Commissioner with the consent of the Minister”.
This section states how a member of the Garda Síochána operates abroad under the Garda Síochána Act 1989. A member may serve abroad as a member of a United Nations force, a liaison officer with Europol, or now, in a new category, as a member of a joint investigation team. The Minister said that there were already informal arrangements whereby gardaí serve abroad. In this legislation, we are putting into statute the circumstances under which gardaí will operate abroad in all circumstances. The Minister has added another category. There seems to be a non-statutory and a statutory set of conditions for service abroad by gardaí. I am inserting an amendment here to cover that option whereby the other circumstances may be determined by the commissioner with the consent of the Minister in order that all circumstances under which gardaí serve abroad are covered by statute rather than by some informal arrangement that may exist regarding other service by gardaí abroad.
I can see the force of what the Deputy is saying. However, let us examine section 3(2) of the Garda Síochána Act 1989. The Deputy is saying that people will be liable to serve outside the State. That means, in effect, that the commissioner or I can direct someone to leave the State for any reason that we decide is good, informing that person that he or she must serve outside the State. I would have to go to the representative associations to get their agreement to the proposition that the commissioner and I might think up some new area of service outside the State and simply inform them that they are now liable to serve there in a broad set of circumstances. Members of the Garda Síochána might be somewhat concerned if I took to myself the power with the commissioner to decide new heads of liability to serve.
The Deputy's amendment is too broad, but section 44 of the Garda Síochána Bill 2004, which is before the Seanad, will address his concerns since it provides for the assignment of members of the Garda Síochána on international service and reflects the nature and scope of Garda service overseas, which has grown. Section 44(1) of that Bill provides that the assignment of eligible members to perform duties of a police character with the UN is a matter for the Government, whereas the commissioner may assign eligible members to perform liaison duties in other areas abroad. Such assignments include assigned liaison duties with Europol or, with the agreement of the Government, with a law enforcement agency of a state other than the State, or with international organisations. That is what section 44 of the Garda Síochána Bill 2004 will do.
I must be careful. If I accepted Deputy Costello's amendment, attractive though it may seem, I would be giving myself the power to make it a matter of indiscipline for a garda not to serve abroad when the Commissioner and I agreed on a new area of potential service. I am not keen to do that without consulting the representative bodies.
That is not my interpretation. The new section 3(2) as inserted by section 10(a) says: “Notwithstanding anything contained in the Acts, a member of the Garda Síochána to whom this section for the time being applies shall be liable to serve outside the State”. I then propose to add a new subsection (d) to cover such other circumstances as may be determined by the commissioner with the consent of the Minister. I presume that no garda can serve outside the State without the permission of the commissioner or the Minister.
It is not a matter of "can"; the phrase is "shall be liable to". That is the point that I am making. Detective Sergeant Michael McDowell or Joe Costello can be rung up this afternoon and told that he is off to Ulan Bator immediately since he is liable to serve outside the State. If he asks on what basis, I can tell him that the commissioner and I decided this afternoon that the Mongolian Government should have assistance from members of the Garda Síochána in doing certain things. I might have difficulty in persuading the representative bodies that that was a happy formulation that the commissioner and I could send him to serve anywhere in the world in circumstances where we had agreed that that it was appropriate that he should do so. It is the liability to serve about which I am concerned rather than the entitlement.
I can see that there is a difficulty. However, there is the other difficulty of people who are abroad at present who are not serving under——
That will be dealt with under section 44 of the Garda Síochána Bill 2004.
When?
It is making its way through the Seanad, which is a model of efficiency.
On that basis, I will withdraw my amendment.
Amendment, by leave, withdrawn.
Section 10 agreed to.
NEW SECTION.
Amendments Nos. 9 and 10 are related and may be discussed together by agreement. Is that agreed? Agreed.
I move amendment No. 9:
In page 14, before section 11, to insert the following new section:
"11.—For the avoidance of doubt the disciplinary regulations for the time being in force applying to members of the Garda Síochána shall apply to service by a member whether within or outside the State.".
These amendments are reasonably self-explanatory. Perhaps the Minister might reply to them.
The substance of the matter at issue regarding the two amendments was raised during the Bill's passage through the other House. Amendment No. 9 proposes to provide that the Garda Síochána's disciplinary regulations apply to members of the Garda Síochána whether within or without the State. I assure Deputy Costello that that is already the case. Discipline of members of the Garda Síochána under the 1989 regulations is not bound by geographical limits.
An explicit statement in this legislation that the 1989 regulations apply in the context of this Bill could give rise to a suggestion that they might not apply where they are not specified in other legislation. For example, there is no provision in the Europol Act 1997 to the affect that members of the Garda Síochána assigned to serve abroad with Europol will be subject to disciplinary regulations whether within or without the State. Therefore, the amendment is unnecessary and undesirable, since it would raise the inference that, if it had not been made, the regulations would not apply.
As far as section 10 is concerned, this issue was also raised during the Bill's passage through the other House. The amendment proposed deals with breaches of discipline regarding seconded members operating in the State, that is, team members from one of the other member states involved in establishing the teams operating in the State. It provides that, where such a breach of discipline takes place, the matter will be investigated by the commissioner who will report to the relevant competent authority of appointment.
The proposed amendment is somewhat similar to section 6 of the Garda Síochána (Police Co-operation) Act 2003 which provides for procedures regarding breaches of discipline by members of the Police Service of Northern Ireland. However, there is a significant difference between members of the PSNI being seconded to the Garda Síochána and members of new states being seconded to joint teams operating in the State. The difference is that, where a member of the PSNI is assigned to the Garda Síochána, he or she becomes a member of the Garda Síochána and will be treated as such in all respects, whereas a member of a foreign police force seconded to a joint team operating in the State will remain in the employment of the foreign state which appointed him or her. He or she will act under the direction and control of the team leader for the duration of the joint investigation. However, the person will continue to be subject to his or her home authority's disciplinary rules.
This issue was considered at the drafting stage of the Bill, and it was decided that it would be unwise and impossible to make a legislative revision of the nature now being sought. As I said, we must bear in mind that disciplinary sanctions for seconded officers are not in the commissioner's power. In the circumstances it would not be prudent to establish detailed legislative provisions for disciplinary matters which in all probability are unlikely to arise to any great extent, if at all.
Matters such as this are better left to be dealt with on a case by case basis. They can be provided for in a tailor-made fashion, each agreement establishing a joint investigation team to suit the particular investigations, which would have persons from different countries subject to different rules and procedures. A person who is part of a joint investigation team will remain subject to the ordinary criminal law of the State. If he or she assaults, abuses or threatens somebody or acts unlawfully, steals any material, invades any house unlawfully, etc., such acts will be subject to the ordinary civil and criminal laws of the State.
The question of discipline as an internal police matter is better left, for example, in the case of a French gendarme sent here, to the head of the French police. This is preferable to the Irish authorities disciplining somebody who, at the end of the joint investigation team's tenure, will return to the French force and be outside the scope of the disciplinary measures. This would present many different problems such as which courts should be applied to for judicial review, who would impose penalties on them and so on. It is better left to each policeman's domestic disciplinary regime rather than trying to internationalise the issue.
I will not continue with this. However, with regard to the last point made by the Minister, my amendment does not attempt in any way to discipline. It attempts to grant power to the commissioner to investigate and report to the competent authority concerned. Instead of the gendarmerie coming here to investigate a disciplinary matter — which is probably not envisaged, anyway, subject to the laws of the land — this is something that our commissioner would have the authority to investigate and make a report for the competent authority abroad. That would seem to be a more practical way of going about it.
I agree it is attractive as a notion. There is a minor problem. I do not know, for instance, if French law would allow the head of the gendarmerie to act on foot of a report he received from our commissioner. It would raise a major area of concern as to how valuable such a report would be in a foreign system. I presume, judging by the way in which European countries operate, almost everything is the subject of a regulation. Little is left to casual arrangement within the European system. Unless the report would have some useful function in the French system, the German system or whatever, it could be a redundant exercise as far as the Commissioner is concerned and a waste of his time. It is better to leave it at the domestic system. If a gendarme misbehaves in Ireland while seconded to a joint investigation team, it is up to the French to discipline that person. If the person breaks the Irish law, civil or criminal, we can deal with that ourselves. This can all be provided for in a tailor-made fashion in each separate agreement establishing a joint investigation team to suit the particular investigation, which will have persons from different countries subject to different rules and procedures. There is great flexibility in the agreement establishing the team and it should be left in that context.
I do not necessarily agree with the Minister, but I will not pursue it.
Amendment, by leave, withdrawn.
SECTION 11.
I move Amendment No 10:
In page 13, between lines 42 and 43, to insert the following new subsection:
"(3) Where an act is alleged against a seconded member operating in the State which would, if committed by a member, constitute a breach of discipline, the act shall be investigated by the Commissioner who shall report thereon to the competent authority concerned".
Amendment, by leave, withdrawn.
Question proposed: "That section 11 stand part of the Bill."
This is one of the sections to which I referred concerning human rights which involves the aspect of data protection because of information which may be lawfully attained by a member. Once it leaves this jurisdiction are we sure that the data protection safeguards would cover that information when it reaches another jurisdiction? Under this section, it can be used outside this jurisdiction. This is one of the reasons I raised that issue. I specifically asked on Second Stage that this should not proceed until the Human Rights Commission is asked for its opinion. It was not a delaying tactic. I need no lectures from Fine Gael which has a terrible record in Government for being cited by Amnesty International and others on its human rights record.
Fine Gael had the force of law behind it, unlike several other activities that were occurring in the State at the time. Some people have short memories.
Quite often it had the force of law. The Garda "heavy squad" had the force of law. That was one of the outfits which Amnesty International cited for torture.
They were not going around knee-capping, murdering and robbing——
I welcome the Deputy to the human rights debate, belatedly. What we need to focus on here is to ensure that when legislation is being passed, it has an impact on the human rights of Irish and European people and ensures the best protection is available. That includes, in this section, data protection. Will the Minister ensure that the people retain the right to protect their good names and see to it that if the information obtained is to be used in other jurisdictions, it is not used detrimentally? He should ensure that in cases where such information is not used in court proceedings or criminal prosecutions, it does not appear in newspapers, etc. We have all seen incidences where people's good names have suffered in cases where allegations which cannot be proven have been leaked to newspapers by various law enforcement agencies in Europe. Those people have not had the opportunity to protect their good names.
The answer to that is set out clearly in section 11, which says what the information can and cannot be used for. There are a number of matters for which the information gleaned may be used. These are the only purposes for which the information may be used. The emphasis of our political agenda now should be on supporting policing rather than nit-picking.
That should be throughout the whole island.
Indeed. We have now reached the point where what is needed is a substitute for what are called the civil administration units of the IRA which are now functioning in Northern Ireland, brutalising young people, with no appeal to any court and no human rights being enforced. What we want is a clear consistent argument from those who are concerned with human rights in our legislation, so that they are equally vigilant about serious invasions of human rights when carried out by a sister organisation on this island, and that there is no double talk, double standards or hypocrisy on show in this respect. I would say to Deputy Ó Snodaigh that it is somewhat rich to hear the human rights record of the Police Service of Northern Ireland being impugned by a representative of a political party that condones the civil administration unit's activities throughout Northern Ireland in which the ankle and knee joints of young men are broken by masked people with baseball bats at the behest of a sister organisation of his party. There is no condemnation, protest or speechifying about it. That is somewhat rich.
I am on the record as opposing all such incidents, whether they happen in Ireland, England or throughout Europe. The Minister would probably know that. Despite his response, I am still not sure that this is the only purpose for which such information can be used. I am asking if we can ensure that there is adequate data protection in place to cover the use of all such information. As the Bill stands, it does not augur well. More protections need to be in place to ensure that if information is gathered, it is not used nefariously when it gets beyond our shores.
I believe section 11 is adequate. I will go back to the point where Deputy Ó Snodaigh claims to be on the record as opposing all such activities. If I heard Deputy Ó Snodaigh and his colleagues recommending that anybody who knew about kneecapping or the torture and mutilation of young men in Northern Ireland should go to the police with that information so that those responsible could be brought to justice, I would believe one word of what he said on the matter, but since I have never heard any member of his party, even in the case of the Omagh bombing, recommend anybody to go to the police, North or South, with information on those issues, I despair.
Question put and agreed to.
Sections 12 to 14, inclusive, agreed to.
SECTION 15.
Amendment No. 11 deals with resources for the Garda Síochána.
The amendment has been ruled out of order.
I hope the money will not be used up by bureaucrats in the Departments of Finance or Justice, Equality and Law Reform and that it will go to the Garda to provide additional resources for investigation. That is what we want to ensure will happen.
Amendment No. 11 in the name of Deputy Paul McGrath proposes inserting the phrase "and the Garda Síochána" into section 15, which is a standard expenses provision. The effect of the amendment would be to provide for the expenses of the Garda Síochána in addition to those of the Minister and the Minister for Finance. This would have an obvious cost implication and potential for an additional charge on the Revenue. The amendment must, therefore, be judged out of order as it involves a potential charge on the Revenue.
Amendment No. 11 not moved.
Section 15 agreed to.
Sections 16 and 17, inclusive, agreed to.
Schedule agreed to.
Title agreed to.
I thank the Minister for attending today's meeting to consider Committee Stage of the Criminal Justice (Joint Investigation Teams) Bill 2003. I thank members for the contributions to this debate.
When is it anticipated that Report and Final Stages will be taken?
Soon, subject to the agreement of the Whips.