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SELECT COMMITTEE ON JUSTICE, EQUALITY, DEFENCE AND WOMEN’S RIGHTS debate -
Thursday, 28 Apr 2005

Garda Síochána Bill 2004 [Seanad]: Committee Stage.

I welcome the Minister for Justice, Equality and Law Reform to the committee. The purpose of this meeting is to consider Committee Stage of the Garda Síochána Bill 2004.

SECTION 1.

I move amendment No. 1:

In page 9, between lines 28 and 29, to insert the following subsection:

"(2) The Garda Síochána Acts 1923 to 203 (so far as unrepealed by this Act), the Garda Síochána (Compensation) Acts 1941 to 2003 (so far as unrepealed by this Act) and this Act may be cited as the Garda Síochána Acts 1923 to 2004.".

My first amendment relates to the unrepealed legislation. I do not know if the Minister intended the Bill to be a consolidation Bill that would cover all previous legislation since the foundation of the Garda Síochána but it does not go that far and important legislation remains.

The backdrop to the Bill is the change in Irish society, where we have moved from being a close-knit, rural society to an affluent, urban society. Many tensions, problems and crimes are consequent, as they have been in every country that has undergone such a transformation. There is, therefore, a need to change the methodology, practice, culture and structures of the police.

I was heartened by the Minister's appointment of Senator Maurice Hayes to roll out the main features of the Bill, particularly community policing and the elements that will change the working practices and operational structures of the Garda. The Senator is a good choice because of the leading role he played in drawing up the report on the ombudsman and, subsequently, on the Patten commission on policing.

Having appointed him, perhaps the Minister might widen Senator Maurice Hayes's brief and look at what he did in Northern Ireland and consider the idea of a commission on policing. We should not miss the opportunity when passing this legislation to look at the context and the manner in which the legislation will be introduced and the type of policing we need. In addition, the public should have an opportunity to engage in the process. We endeavoured to do this with public submissions invited for hearings on community policing. However, this by its nature was limited. It is most crucial we engage both the public, who will be policed and who experience anti-social behaviour and crime, and the practitioners, the Garda. Unless the Garda is on our side with this fundamental proposal, it cannot be achieved. We cannot change the culture of investigation for one of prevention. We cannot change the culture the Morris tribunal identified in County Donegal, where colleagues see their priority as standing by one another rather than standing by the truth or the code of ethics and conduct by the force. We need, therefore, to engage the practitioners.

Senator Maurice Hayes is the ideal person to open up this debate, considering his experience. His experience and resources must be used to go that step further. I suggest the Minister for Justice, Equality and Law Reform widen his role to give us a context in which all key players can be engaged. The Minister made an excellent choice in Senator Maurice Hayes as chair of the implementation group.

The Minister knows as well as I do, the number of Acts never implemented. They are not implemented because resources, personnel or motivation are lacking or enforcement is a problem. If the Minister is fundamentally changing Garda work practices, how will he ensure it will succeed unless he has already consulted the force? It will only succeed if the force is brought into the debate on the issue.

An opportunity has been missed in not providing some form of Garda authority. Instead, a Garda inspectorate will be provided. This mechanism, with an element of oversight, only came about as an afterthought because the Morris tribunal identified inadequacies in legislation for oversight procedures and from its experience in the Donegal shambles. There was no mechanism outside the force for anyone to know what was going on, no more than there was a sufficient mechanism in the force to supervise what was happening at various levels of responsibility. The inspectorate would be better incorporated in an overall authority with the great advantage of being a bulwark between the Department and the Garda. It must provide the mechanisms for accountability and promotions, ensuring a proper inspection of the service and the drawing up of plans.

The Minister has come a long way in meeting the concerns expressed by the Opposition on his initial proposals for the Garda ombudsman. The inspectorate seemed a lame alternative to the Garda complaints machinery. By appointing a triumvirate, for which I hope gender equity is ensured, the Minister has provided an entity without the element of personal responsibility. The buck does not stop with a person, unlike how other ombudsmen offices operate. In those offices, there are single individuals at the front, not a corporate entity. A corporate entity is a wonderful way of avoiding accountability when heat comes on it. This concerns me as much as the powers that it has.

Community policing is the nub of this legislation. If we get that right, the Minister and the Oireachtas will have done fundamental work. I hope he will have the opportunity to examine the joint committee report on this issue and take on board its proposals, which the Chairman so eloquently outlined.

Education and training provisions are missing from the Bill. One cannot introduce fundamental changes to work practices, if one cannot provide for changes to education and training. Essential data and statistics on crime are also necessary. The Garda, as well as politicians, is operating with unreliable data. The joint committee's report recommends local crime surveys to be conducted on an annual household basis, under the auspices of the CSO. The Minister must build in the provision of education and training into this Bill. If a new type of Garda profile is to be created in a community context, with local authorities facilitating the process, new skills and sensitivities and professional methodology is required. These will be in considerable demand from the Garda.

We are at a crossroads with the Garda Síochána. It has served us well since the foundation of the State. However for the 21st century, people are crying out for a more comprehensive, complex and effective service from the Garda. If this Bill intends to deliver such a service, changes and developments are required to it to ensure it will be that vehicle of delivery.

If we are clearing the decks with opening remarks——

It is appropriate that members can say some words now, so we can speed through the rest of it.

Despite there being 108 amendments, a great deal of common ground is shared by Members of the House regarding the Garda Síochána and I anticipate that the constructive approach adopted by the Opposition will ensure we get through the details on Committee Stage in a sensible period of time.

Where does Fine Gael stand on the Garda Síochána? I know where I stand, as my objective is for Ireland to have the best police force in the world. This has many meanings. The Garda Síochána must be the best resourced, best trained, best motivated and best managed force. We must have adequate numbers so management can deploy forces in a way that is necessary to deal with the many incidences of crime and anti-social behaviour of modern times. This also means having cutting edge technology and decent accommodation and equipment. I am impressed by the good motivation of the new recruits and we must ensure this motivation is channelled to its best effect during their careers in the Garda Síochána. I will give my full support to anything that will achieve these objectives.

I said that there were 108 amendments and I do not propose to touch on these in my opening remarks. We should clear the decks with a few issues. Among the public, there is no general understanding to why the Government fully supports having a police authority in Northern Ireland but is opposed to having a police authority in the Republic. We can talk about the Police Service of Northern Ireland as being a regional police force, of which there are approximately 40 in Britain, but it is a significant force in part of our island. The PSNI is not as large numerically as the Garda Síochána, although it was not far short in its previous manifestation.

I do not think the public understands the Minister's response that it would be inappropriate to have a police authority over a police force in a sovereign jurisdiction as opposed to one in a non-sovereign jurisdiction. The public feels the police authority in Northern Ireland is doing a good job and could do a better job if it had the full support of everyone in that jurisdiction. A sense of pride is noticeable in the country in the acceptance and development of a good policing authority in Northern Ireland. By comparison, we will not have a police authority and the public does not understand this. I sometimes do not know why we do not go down this road as the future of the Garda Síochána has not been properly debated.

The Garda Síochána ombudsman commission is another issue of concern. Universal agreement is present that the old system of complaints must be changed. The Minister's proposals on an ombudsman are largely accepted but people do not understand why we are different to other jurisdictions and Northern Ireland in particular. The role played by Ms Nuala O'Loan in Northern Ireland is appreciated as there is a sense that she has made a significant contribution in that jurisdiction. Questions are being asked here about why we do not have an equivalent of Ms O'Loan if she is doing such a good job. Are we trying to dilute the effectiveness of the ombudsman by establishing a three-person commission rather than a single post?

The Garda Síochána has a number of questions about the ombudsman as well. Both the Minister and I visited the GRA conference in Tralee recently but I listened rather than spoke. One of the significant issues that arose from speaking to gardaí was their feeling of exclusion from the complaints procedures of the ombudsman commission and that they could not lodge complaints themselves. This is an issue we must tease out on Committee Stage. This is not a contentious Bill since there is a common approach to ensure this will be as worthwhile a Bill as possible after Committee and Report Stages.

I will be brief as I wish to use the time available to go into detail on the issues later, which is what we are here for. At long last we have reached this long overdue stage and have the opportunity to build the best possible policing service to be a model for other countries to follow. When the Garda Síochána was first set up, other jurisdictions examined it as an unarmed police force and followed suit. Matters have gone awry since its foundation but it has mainly served the State well. The system is more than 80 years old and must be modernised to bring it into line with what we have demanded of the PSNI in order that we reflect similar models in terms of the ombudsman, which Deputy Jim O'Keeffe mentioned.

We should also ensure that the inspectorate is as open, transparent and accountable as possible without undermining its function. By the end of this process, we must have set in motion changes and reforms that will allow the Garda Síochána to carry out its duty in as professional and effective a manner as possible. The changes we propose must help the Garda enjoy the full confidence of the community.

I welcome the Minister and his team. I also welcome the Bill as it is one of the most radical pieces of legislation put before the Oireachtas in a long time. I laid my concerns before the House in my speech on Second Stage and I am glad the Minister was present at the time.

I am grateful to the committee for the generally supportive remarks. I will not rehash material that has been debated before. Deputies Costello and Jim O'Keeffe raised two issues. There are aspects of an independent police authority that seem plausible. On further analysis there are other aspects that are undesirable. The Police Service of Northern Ireland is a regional constabulary. Ireland is a republic of 4 million citizens. It has a police force that is well regarded by the public. There is not the same situation as there was and still is to some extent, in Northern Ireland where a section of the community rejected the model of policing.

Democratic accountability is very important. Deputies who propose an independent police authority do not envisage some of the difficulties that would arise. Imagine I gave a budget of €1.1 billion to an independent police authority and told it to allocate funds as it saw appropriate and do its job independently. If there was no adequate digital radio network, or overtime money ran out in December, or there were May Day protests-——

What if there were no car for the State pathologist?

——or there was no car for the State pathologist, I could do nothing. I would reply that I gave the authority more than enough money, an increase of 7% on last year, and that the authority made its decisions independently. I would stand up in the Dáil like a stuffed scarecrow telling Deputies that I could not assist them and that they should talk to the independent authority. If a situation like the Dean Lyons case occurred I would have to reply that it was solely a matter for the chairperson of the authority and the members. It would be independent, with the power to set up inquiries, and there would be nothing I could do. At least the present system has the merit that I have to take responsibility if there is no digital radio system. I am not appointed for a fixed term, and I am dismissible by the Oireachtas if I fail in my duties, unlike members of a police authority who could be there for five years. If they were not doing the job correctly, if interest groups and representative groups unduly influenced them, nobody would have to take personal administrative accountability for it.

Consider the case of RTE, an independent authority. If Members of the Oireachtas were agitated about a particular programme, or the closing of the symphony orchestra, the relevant Minister would say it is a matter for the authority. It is not the business of the Minister whether Pat Kenny competes with Ryan Tubridy, or whether Marian Finucane has a programme in the morning. Setting up an independent body between democratically elected representatives and the reality on the ground is not the wonderful vision some people contend. I do not think it would improve matters.

Let us consider another scenario. Imagine if the local policing committees had to contend with an independent authority in County Dublin. The local committee members could be told that while their ideas were interesting, the Dublin independent police board manages policing in Dublin and would not take their ideas on board. If it is good for local authorities to have a direct engagement through the policing committees it is good for the Members of the Oireachtas to have a direct link to policing. As Minister, I can be questioned and called in to a committee, and the Commissioner can be called in before a committee or the Public Accounts Committee. This is preferable to calling in the chairperson of an authority who will say the budget is insufficient.

Sometimes the chattering classes, and I do not include Deputy Costello in that, say that because something works in Northern Ireland the same should be set up in the Republic. Another point is the party political nature of the police authority. Is it a good idea to remove responsibility from the Oireachtas and give it to a group partly selected for their political affiliation? The case has not been made. Ireland is a democracy in which the Garda Síochána is the security service of the State. It is crucial that the Government has direct control over the security of the State. It also has direct accountability. The Government will be able to give direction to the Garda Síochána to take steps to ensure the security of the State. I question whether an independent authority would be a good arbiter of the security of the State. If one considers the foot and mouth disease epidemic I am not sure an independent police authority would be able to tell a Commissioner to secure the Border. If the Commissioner replied that he did not have the necessary resources how would that be resolved?

The present situation has a great deal of merit and is not appreciated. I ask Members to recognise the two sides to the argument and to acknowledge that my refusal to apply the Northern Irish model of policing here is not borne of mulish conservatism. Were the ombudsman commission in Northern Ireland to comprise three people and I were to inform this committee that it would be better if one person were ombudsman in the South, the chorus would be that this proposal was not the same as in Northern Ireland, that it was a weaker body because it only had one person, and that as three people worked well in Northern Ireland, it was a major mistake that undermined the institution in the South. I would then be accused of planning to appoint a political favourite of my own and of not having balances and checks. I could write the script myself.

If the Minister had supported one person, we could have agreed.

I am just making the point. We could argue the toss either way on that. There is no doubt that Nuala O'Loan has worked well in Northern Ireland. Were we to appoint somebody ombudsman or data protection commissioner and a confrontational relationship developed between that person and the force, the representative association or the commission, it could be extremely damaging. Three people are less likely to get into a confrontational relationship with the force. The answer to the question whether such an ombudsman commission is unusual is that it is not. Looking at international precedents, what I propose is as common as what is in place in Northern Ireland.

Does the Minister know where an ombudsman commission exists?

It is in Britain, for example, and Canada. It exists in a number of places, so it is not as if I have come up with a peculiar product of my own thought processes. It is the norm.

On Deputy Costello's amendment regarding the Garda Síochána compensation code, I do not want to construe all the Acts as one as each contains different definitions. Generally speaking, I would agree with Deputy Costello that it is better to remove items from the Statute Book and make them redundant but a few technical problems in this case made it unwise in the view of the parliamentary draftsmen.

Parts of the Garda Síochána compensation legislation are already antiquated. I discussed this with the Garda Representatives Association in Tralee in a question and answer session after my speech. One of the delegates made that point that currently we have significant delays in certifying a garda's injuries as serious and that adds unnecessarily to the complexities and delays in compensation. I agreed with the delegate on that point and stated that there are other aspects of the compensation code that I was not keen on, such as that I can never appeal an award that I feel is excessive. It does not often happen but there are occasions on which I would like to be in a position to appeal.

I do not want to stir up controversy, but it is not necessarily the case that all these issues must be decided at first instance by a High Court judge. It could be reformed to have an expert panel deal with these matters and include some form of judicial appellate process. The Garda Síochána compensation system is not one which I regard as perfect and neither do gardaí. I must confess to the committee that one of my plans was to repeal it and re-enact it as part of this legislation but I decided it was too sensitive a subject and likely to give rise to significant delay and disagreement between myself and the representative associations, particularly the GRA. I decided therefore it was better to leave it to be examined on a separate occasion.

I agree with Deputy Costello's point on a broad public debate on policing and one of the functions of the Bill is to have such public consultation processes. My problem is that if Senator Maurice Hayes were to be established as a neo-Patten for this State, given the rate at which we have progressed, this legislation would not go through in the lifetime of one Government. I say that with the experience of being Minister for Justice, Equality and Law Reform for almost three years.

I hope to have this enacted before the summer break and I ask Senator Maurice Hayes and the others in his group to use the period between now and December to advise, monitor and audit the implementation of this Act so that as much of it as possible is operational by 1 January 2006. That is my ambition and it is challenging, but I do not want a situation where the Bill is passed and a year later the details have yet to be teased out and people are wondering where the inspectorate and ombudsman are.

Senator Maurice Hayes was asked to do this job to place outside pressure on us — I include myself in that — to deliver not merely the passage of the legislation but also an early implementation date. I want Senator Maurice Hayes's group to state that if the inspectorate is to be operational in 2006, these are the steps that must now be taken, and ask where are the advertisements for members and the protocols by which the inspectorate will operate. All this work must be done now.

I ask Deputy Costello to speak to the amendment as a general debate will take place on other amendments.

I hope the Minister is correct about the ombudsman, but we must wait and see as it is the only three-person ombudsman commission that we have. The Minister is indulging in some scare-mongering about the concept of a police authority by saying that by not having one, the country would not be in malaise were there to be a crisis such as another foot and mouth outbreak because we would be able to deal with it while Northern Ireland would not. I was not thinking in any way about appointments to the authority being political, but that will be a problem within the Garda in the absence of an authority.

On Senator Maurice Hayes's role, the Patten commission sat for 15 months. Given all the work it did, a similar commission here could have run in parallel with this legislation being passed and dealt with the issues in nine months to a year. I am delighted to hear the Minister intends to widen the debate and that Senator Maurice Hayes will be a major player in that.

On the amendment, I accept the Minister's remarks on not giving a general collective citation because of various elements, but certain aspects of the compensation and pension systems and the machinery dealing with these cause gardaí much trouble at present. A major issue that has arisen in discussions with the Garda Representative Association is that it is a question not just of awards and compensation to gardaí but also to the public, that a number of gardaí have come before the courts for misbehaviour which has not been adequately dealt with by the complaints machinery, and that the Department of Justice, Equality and Law Reform legal representation has fought this all the way to court before settling. A mechanism should be in place to ensure that is obviated and we do not spend enormous sums of money on it. The figures the Minister has shown us demonstrate that lawyers get much more out of the existing system of awards. This is the general compensation element the Minister touched on.

I accept that a strong case can be made for and against the police authority. I understand the Minister's position. I will refer to an experience that caused me to believe that there should be some independent system in place and then I will suggest what that should be. On second thoughts, I will make the suggestion first. We should have a security committee of the Oireachtas. There should be some interposing mechanism. I am not in any way pointing the finger at the Chairman or at this committee, but the committee has so much ground to cover it is not capable of dealing with this issue as well. An all-party security committee of senior Members of the Oireachtas that could discuss issues of concern with the Minister, in confidence where necessary, is a route that could be followed. I am interested in examining that option further in the future.

At one stage during my political life a senior Garda officer was giving me information on telephone tapping and other matters but I could not raise this with the Minister of the day because the suggestion was that the Minister was actively involved and had authorised the tapping. The paranoia that existed in the Phoenix Park at the time was such that the senior Garda officer would not telephone me from there, would not meet me, except to arrange a rendezvous outside this House in his car, where he showed me files that convinced me of what was going on. However, there was no forum in which I could raise those problems at that time.

Was that a few years ago?

It was quite a few years ago.

It was not in the past three years.

It was a long time ago, during my early days as a politician. This is not a current issue, it is historical. However, it left its mark on me in that it made me realise there should be some way of raising such matters as a parliamentarian. The genesis of my proposal is based on that experience.

The Government of the day collapsed shortly afterwards. A new Garda Commissioner was appointed, as well as a new Minister and the problem was dealt with. If the Government had not collapsed, we would have been in a very serious situation as far as democracy was concerned. I will raise the issue of a security committee of the House again but it does not affect the terms of this Bill.

Regarding the amendment ——

To which party did that Minister belong?

Not to the Deputy's party, mine or the Minister's.

Does the Minister wish to respond to Deputy Costello's comments regarding the amendment?

I take Deputy Costello's point about the cost of compensation for persons who make claims against the Garda Síochána. However, contrary to what has been suggested, on occasion cases are settled well in advance of court hearings in order to minimise legal costs. Nevertheless, there is always a difficulty in these matters and there are good reasons the State Claims Agency does not deal with claims against the Garda Síochána. One can imagine a certain magazine stating that a claim in respect of Garda Michael McDowell was settled for €150,000 and he is still serving in the force. If one hands over the settling of these claims to a claims management system, then the very fact that the case was settled reflects badly on the gardaí involved.

There is always a trade-off. It is not easy to settle these claims. In a simple situation where two cars have crashed and the driver of the Garda car claims he was not over the white line, the risk is that it will be found that he was over the line, so the case is settled. However, when it comes to reputations and where the issue relates to the appropriateness of a garda's behaviour on a particular day and has career implications for that garda, it is not unreasonable to suggest that it will be more difficult to settle such claims. In those circumstances, many other issues occupy one's mind when one comes to settle the claim with a plaintiff.

One is effectively compromising. If a plaintiff is seeking €200,000 in compensation and Garda witnesses are suggesting that the claim is not justified, that it was the plaintiff who was at fault, one might settle for €50,000, because that is a commercially shrewd option in the circumstances.

There are implications for everybody involved. It is not as easy as one might think. If one is dealing with a car crash, a garda falling down steps or a civilian tripping over a loose piece of linoleum in a Garda station, one can settle the claims in such circumstances quite easily because there are no wider implications.

The reason I raised this issue is that there are in excess of 700 court cases pending. That represents a lot of people, money and legal representation. The vast majority of those cases are eventually settled at the door of the court, that is, a settlement is reached anyway. They are not resolved in court and because of that — though I appreciate what the Minister has said regarding promotional and career prospects for the gardaí in question — legal costs become enormous due to the protracted nature of the process. The legal costs far exceed all other costs, including the actual compensation. The mechanism that exists at present must be reviewed.

I accept that point.

Amendment, by leave, withdrawn.
Question proposed: "That section 1 stand part of the Bill."

I wish to declare my intention to table an amendment on Report Stage to alter the title of the Bill in order to reflect amendments I have tabled on the ombudsman and the policing inspectorate.

Question put and agreed to.
SECTION 2.
Question proposed: "That section 2 stand part of the Bill."

On section 2, could the Minister deal with the issue of timing? It is hoped that the Bill will pass through both Houses before the summer recess. Section 2 provides for an operational date and I ask the Minister to give the committee an indication of when he thinks the commencement date might be.

This is relevant in the context of the advisory group the Minister has established. I have the highest regard for Senator Maurice Hayes, who is chairman of the group. I appreciate the work he has done in the past and am happy that he has the experience from Northern Ireland on policing.

I have a concern, however, that the establishment of the group might take pressure off the Minister, from the point of view of implementation. That was my initial reaction to the establishment of the advisory group. My negative reaction, however, was in no way based on the calibre of the members of the group, particularly Senator Maurice Hayes.

I assure the Deputy that it has exactly the opposite purpose. I want a third party to observe my ministerial and departmental duties and advise me that if A, B and C are not completed within an appropriate period the January or February deadline will be missed. The genesis of the invitation to Senator Maurice Hayes and the implementation advisory group was my concern that other departmental agendas such as Northern Ireland might distract me. I need somebody to threaten publicity if I fall down on my job by not taking the correct preparatory steps to implement this legislation. This is being done to put an auditor in place regarding our collective efforts, not to cover failure on my part.

I understand the Minister's thoughts on this issue but wonder whether the Oireachtas will be given a role or if this advisory group will report solely to the Minister. Will there be opportunities to hold discussions with Senator Maurice Hayes? This committee might be the appropriate body to do so.

I have no doubt that communications from Senator Maurice Hayes and the group will be subject to the Freedom of Information Act 1997 and to parliamentary questions. I am sure the Senator would be happy to attend this committee if it wishes to hear from him.

Will he be clear to do so without breaching confidences?

I do not plan to gag him unless there are security issues.

Do we then have an understanding that the advisory implementation group might report to us so we may track the implementation process?

While the primary purpose of the group will be to report to me rather than this committee, I will not keep it under wraps. If this committee wishes to learn of the process——

The group will be quite free, apart from obvious security matters, to discuss the implementation process with us.

I do not wish to impose on the members of the group an obligation to testify before this committee.

That is not the objective. To return to my original question on section 2, might I get an indication as to the timeframe for commencement?

I am ambitious to bring about the implementation as quickly as possible. Some elements should involve few problems or may be implemented early, such as chapters 1, 2 and 7, which deal with international service and co-operation with other police forces, and chapter 8, which deals with offences and disclosure of information, of Part 2. I have not yet completed the necessary work in this area but will devise a schedule.

I wish to ask a question on chapter 4 in terms of guidelines as distinct from regulations.

The chapter deals with local authorities among other issues.

A significant amount of work remains to be done on this matter.

Does the Minister propose to issue draft guidelines which may be subject to examination or amendment?

Section 31 is peculiar because it states, "as soon as practicable after the passing of the Act" and before its commencement I must begin work on this matter. It was imposed on me by the Seanad and I could not sit on this issue.

Before drawing up guidelines the Minister will consult the Department of the Environment, Heritage and Local Government. Will draft guidelines be sent to this committee or to local authorities which express interest in the legislation's effects?

That is possible. I have not yet thought about the matter.

If such was the case we might then discuss timeframes.

Question put and agreed to.

When would the Minister suggest that this committee adjourn?

I have to attend a passing out parade in Templemore. As I am travelling by air, I do not wish to disrupt the arrangements that have been made.

We will reconvene at 12.30 p.m. with the Minister for State at the Department of Justice, Equality and Law Reform, Deputy Brian Lenihan, in attendance. The committee will sit late on Wednesday, 4 May 2005, by agreement.

As this committee may discuss sensitive areas, may we take it the Minister for State will have full authority to accept amendments rather than simply stonewall? That has happened in the past.

He will not stonewall but will engage fully with this committee.

The Minister gives authority to the Minister for State to make up his mind.

I do so within limits.

In so far as it is practicable.

Sitting suspended at 10.40 a.m. and resumed at 12.35 p.m.
SECTION 3.
Question proposed: "That section 3 stand part of the Bill."

I have a couple of queries about section 3. I note that "joint policing committee" is given a meaning and interpretation, but there is no reference to local policing fora. Is it intended to describe or define them in some fashion? I refer to page 10, line 10: "'joint policing committee' means a committee established under section 32". The other structural arm of community policing is made up by community policing fora or local policing fora. Would it not be appropriate for us to refer to them too? They will form part of the delivery service, if we are going to do the business properly.

I support my colleague, Deputy Costello, on this issue. Deputies will have no doubt studied Fine Gael's proposals to combat anti-social behaviour.

We have done so.

The Chairman did so before his breakfast, no doubt. He can find them on www.safestreets.ie. We must bring the connections between the Garda Síochána and communities to the most local level possible. How that is done is a matter for discussion. It is not right to attempt a one-solution-fits-all approach. We should adopt the principle of subsidiarity. That is captured to a degree in the committee’s report, on which everybody is agreed. It could be achieved through joint policing committees. What is the other body called?

CPF, the community policing forum.

What we call them does not matter.

Some of them are called local policing fora.

The important thing is that we accept the principle of local involvement between communities and the police. Most importantly — I fully support Deputy Costello on this — the legislative framework must allow that to develop. It might develop organically in different ways in different parts of the country. I can imagine that Ballymun and Ballydehob might come up with different solutions. Our legislative approach should fully cover that and allow such organic development. That is my main issue as far as definition is concerned.

I wish to put down a marker on the definition of "volunteer member". I am not entirely in agreement with what appears to be the proposal in section 14. It is not clear what the Minister has in mind. We have to provide in the Bill for resource support for the Garda Síochána. There are different ways of doing that. The UK has two different methods — the special constables and the community support police. In other countries there are different approaches. There is a provision for what is called "volunteer members" in section 14. The problem is the definition of a volunteer member. My understanding of a volunteer is somebody who volunteers to do something. Will this person be full time, part time, paid or unpaid? That is the first issue. The definitions section merely provides that "volunteer member" means "a person appointed under section 14 as a volunteer member of the Garda Síochána.” There is no clarity in section 14 as to what is in mind.

The problem is the definition in section 3.

That issue can be discussed under section 14.

I am putting down a marker. If the Chair feels it can be dealt with under section 14, that is fine.

It will be.

That is fine.

I have similar concerns in regard to a number of titles because they are under the interpretation section.

There are a number of amendments to section 14.

For instance, on "child policing committee" I have a different suggestion to make. The interpretation section does not define the Garda board as the board of An Garda Síochána as established under section 106.

The title of the organisation is An Garda Síochána. Throughout the Bill the organisation is referred to as "the Garda Síochána" which is inaccurate. That is a small but valid point, and I hope it can be corrected. For example, section 6(1) reads: "The police force called the Garda Síochána ...". That is not correct, it is An Garda Síochána.

Either the Minister or the Deputy should table amendments.

I will try——

That can be worked out on Report Stage.

Garda Síochána Bill without further addition.

It is in Irish.

Is section 3 agreed?

We did not have a reply. Are we not going to put in local policing fora or the policing fora?

Section 3 is the interpretation section, into which the draftsman has gathered the various terms that occur in multiplicity in the legislation so that they have a common meaning. That is the purpose of an interpretation section. To take the specific issue, the local policing fora or, rather, the joint policing committee, is referred to in several parts of the Bill. From the point of view of legislative certainty it is important it has a clear unequivocal definition and that is provided for in the interpretation section.

In section 32(2)(d) there is a specific reference to the local policing fora to discuss and make recommendations to the committee concerning the matters referred to in regard to the patterns of crime and the factors underlying levels of crime as they affect their neighbourhoods. The local policing forum is written into the legislation in section 32 but that is the only reference to it. Given that there is more than one reference to the joint policing committee it is essential that it is referred to in the interpretation section. On the same issue, Deputy O’Keeffe raised the question of whether there was sufficient subsidiarity envisaged in the legislation. The answer is yes. Again I refer to section 32(2)(d) which allows for the local policing fora to exist under the joint policing committee.

What section is it?

Section 32(2)(d). In it Deputies will see an express reference to the local policing fora which are under the supreme forum of the joint policing committee, which is a democratically constituted body.

It is with the Commissioner's consent.

There is an amendment on that issue and we will deal with it.

There is provision for it.

I am explaining the reason it is not in the interpretation section. Deputy O'Keeffe raised the issue of volunteer members. Volunteer members are dealt with under section 14 and the substantive issues can be discussed.

If we can clarify them then and amend that section, if necessary, I will be happy.

Is fíorcheist í an cheist a bhí ag an Teachta Ó Snodaigh, agus déanfaimid scrúdú i dtaobh na ceiste sin, is é sin, cén fáth nach bhfuil An Garda Síochána i dtéacs Béarla an Bhille.

In regard to the local policing fora, the Chairman spoke eloquently yesterday on the proposals from the joint committee which dealt with the joint policing committees.

We had done all the process at that stage.

No doubt, after your most eloquent contribution that morning on "Morning Ireland". The committee presented the community policing fora as being an integral part of the structure which the committee was hoping would be taken on with greater robustness given that it is expressed in the Bill. It is expressed in a tentative fashion in the Bill and may or may not be established at the sole discretion of the Commissioner.

A Government amendment has been tabled on that issue.

We have tabled other amendments on the matter, which if accepted would mean it would be mentioned more than once. There would be multiple mentions if it was accepted in the vein we are talking about. It would be a shame to leave it out because the joint policing committees are one part of the structure. The community policy fora are a delivery mechanism which is another part of the structure. I suggest the Minister look at it again to see whether it should be included as an issue of substance that requires to be mentioned in the interpretation section.

We will look at it under section 32 and any consequent amendments that may be necessitated will be——

My final point on section 3 is whether the Joint Committee on Justice, Equality, Defence and Women's Rights should be included given that the Committee of Public Accounts has been given recognition. The Joint Committee on Justice, Equality, Defence and Women's Rights is the oversight committee for the Department of Justice, Equality and Law Reform. If the Committee of Public Accounts is included should the more appropriate committee in regard to the entire business of the Garda Síochána and its operations be included also?

Perhaps the Deputy will bear with me for a moment.

It is a technical matter more than anything else.

Section 35 deals with accountability and the Garda Commissioner becomes the Accounting Officer. Because of this there is an essential consequential reference to the existence of the Committee of Public Accounts. That is the reason for the inclusion of the Committee of Public Accounts. No disrespect to this committee but the Committee of Public Accounts is a fundamental committee in terms of legislative procedures and goes back to the 19th century.

That is not the only reference. There is also reference to the Comptroller and Auditor General.

Those references must be contained in the legislation to ensure proper accountability now that the Commissioner will become the Accounting Officer.

There is no reference to the Comptroller and Auditor General in the interpretation section whereas there is a reference to the Committee of Public Accounts.

We cannot have the Comptroller and Auditor General and the Accounting Officer without the Committee of Public Accounts. That is why there is an express reference to the Committee of Public Accounts in the legislation.

On the basis of accountability, not only in regard to accounts matters but in general operational matters, I suggest that we consider inserting in the legislation a requirement that the Garda Commissioner would come before the justice committee to——

An amendment has been tabled on that subject.

That is the direction I am going in, Chairman.

When we come to the amendment we will discuss it further.

No doubt you will support it, Chairman, when it comes to a vote.

I note he is not enthusiastic.

We will see what happens. There is a long way to go yet.

Question put and agreed to.
NEW SECTION.

I move amendment No. 2:

In page 11, before section 4, to insert the following new section:

4.—Every order or regulation made by the Minister pursuant to this Act shall be laid before both Houses of the Oireachtas and, if a resolution annulling the regulation or order is passed within the next twenty one days after the House has sat following such laying, the order or regulation shall be annulled accordingly but without prejudice to anything previously done thereunder.".

There are many references in the text to various regulations, orders and, in section 4, to guidelines. Because of the implications for the implementation of the legislation it would be appropriate if those documents were laid before the Houses for 21 days, perhaps even in draft form, to allow us examine them. That would allow the justice committee to examine in particular the guidelines on the establishment of the functions on community policing in section 4. The Minister is only obliged to consult with the Minister for the Environment, Heritage and Local Government on those matters. He could then draw up those guidelines which could determine the entirety of the operation. There would be no opportunity for anybody to examine them other than the Minister and the Department of the Environment, Heritage and Local Government yet those guidelines would have major implications. It might be desirable to have that opportunity. It is standard procedure to lay regulations in this form before the Houses for 21 days and if people wish to raise a query about them, they may do so.

I would like to hear the Minister's response on that. Does the Minister have a specific power to make regulations and where does that arise?

There are many powers to make regulations throughout this legislation. The Minister is opposed to this amendment because it seeks to introduce a universal blanket provision, which applies to all the orders and regulations the Minister is empowered to make under this legislation. Quite a number of such instruments are provided for in various sections of the Bill and it should not be necessary in every case to lay such instruments before the Houses of the Oireachtas.

The approach taken by the Minister in the Bill is that in each case where the Government has decided that an order or regulation is to be made under the Bill, provision for the laying of the instrument in question before the Houses of the Oireachtas, either with or without a resolution procedure, is dealt with separately in each case. Essentially, there are some cases where the procedure described by Deputy Costello in his amendment should be followed, for example, section 116, which governs the issue of police co-operation under the provisions of sections 45 to 49 and the movement of officers between the Garda Síochána and the Police Service of Northern Ireland. Equally, there are other areas, for example, section 114, which relate to regulations on the management of the Garda Síochána, and section 115 concerning the disciplinary regulations for the force where the Minister is of the view that there should not be a requirement to lay the regulations before the Houses and have the possibility of an annulment procedure by resolution. If Deputies examine section 114 they will understand the Minister's rationale. There is a vast range of matters on which the Minister can make regulations after consulting with the Garda Commissioner and with the approval of the Government, including regulations relating to the management of the Garda Síochána, the ranks, the number of members, the duties of ranks, the admission, appointment and enrolment of members and a whole range of issues. It would be very cumbersome to impose a requirement in regard to all of those regulations that they should always and necessarily be laid before the Houses.

Regulations, wherever their origin, are capable of review by the committees of either Houses or by the Houses themselves under the statutory instrument procedures. This committee can discuss any regulation it considers inappropriate. If a question is raised about any regulation, therefore, it is open to this committee to discuss it. The Minister does not believe that every aspect of the Garda Síochána and its management should be subject to the far-reaching legislative procedures envisaged in this amendment.

There is no doubt that a large number of regulations will be forthcoming in regard to this matter. The Minister said there should not be a blanket requirement to lay them before both Houses of the Oireachtas but surely the opposite is the proper approach. There should be a standard provision for accountability in respect of all regulations. What is the heavy burden on the Minister? His heaviest burden is making the regulations but once the regulations are made, what is the problem with laying them before both Houses of the Oireachtas? They will be before the Houses for 21 days and can be inspected in that period. Where does the bureaucracy come into it? If anything, the bureaucracy is in having to put together all these regulations but once they are made it is a simple matter to put a copy of each of them before the Houses. I do not understand where the problem arises but there is a lot to be said for accountability to both Houses of the Oireachtas, which we do not have currently.

If it is a question of some secret matters to do with discipline or whatever that the Minister does not want to divulge, he should say that particular regulation cannot be presented to the Oireachtas because he does not want the Members of the House to know about it. Let us find out the real reason. I do not see where the bureaucracy arises.

We are getting to the core of two separate issues and perhaps it is as well to have them clarified, although substantive discussions may arise from section 114 and other sections later. This involves the role of the Oireachtas, if any. Does the Oireachtas have any role of consequence? Deputy Costello has opened up the debate on that. I believe there should be a role for the Oireachtas. I see a role for the Committee of Public Accounts also but I am of the view, particularly in regard to secondary legislation, that the Oireachtas is there purely to rubber stamp such legislation. In many instances the secondary legislation comes into effect unknown to Members of the Oireachtas. There is not even a question of a positive resolution. Members do not even know about it, unless they study the back of the Order Paper——

That is right. There is no transparency.

——and follow it up. There is not even a circulation of the documents referred to on the back of the Order Paper. That is one issue.

The second issue concerns the respective functions of the Minister and the Commissioner. Originally, we got the impression from the Minister, Deputy McDowell, that the Commissioner was being given broad policy approaches that had to be followed and after that it was over to him to do the job. However, one might find that in any regulations concerning the management of the Garda Síochána it is the Minister who introduced the legislation and all he has to do is consult the Commissioner. The question of the future role of the Minister and the Commissioner needs to be teased out carefully so that we can have a nuanced approach, if necessary, under the regulations to incorporate that from the point of view of the enabling provisions in the Act. Those are the two main relationships we need to clarify. After that, the issue of how the regulations are put into effect will fall into place.

If regulations are made, are they subject to FOI? If so, is there any reason they would not be laid before the Dáil as they are made? When this committee dealt with the Abbeylara case, we had a little problem because we were not fully aware of regulations, which were not fully transparent.

These documents are not subject to the Freedom of Information Act for the good reason that they are in the public domain already. They are published documents.

Legislation.

Yes. It is State legislation, not secret legislation.

What is the problem?

The publication of statutory instruments is regulated by the statutory instruments legislation. Deputy Jim O'Keeffe touched on this point when he referred to the fact that Deputies do not often notice subordinate legislation on the Order Paper. Were I to accept Deputy Costello's amendment, I would simply extend that list on the Order Paper. That is what the amendment seeks to do. Deputies can consult that important publication Iris Oifigiúil and ascertain therefrom what statutory instruments are promulgated by particular Ministers.

The Minister of State should live in the real world. Who reads Iris Oifigiúil?

There is a fundamental point here. This legislation is public documentation. There seems to be an underlying suggestion that these are secret regulations but they are not. They are published statutory instruments. To promulgate a statutory instrument as law, it must be published so there is no question of secrecy or clandestine activity.

As regards the relationships concerned, the function of the Oireachtas is to lay down the broad principles and policies in the legislation. In all modern legislation, subordinate legislation is required to implement its policies, principles and purposes. The Minister for Justice, Equality and Law Reform is the person invested with that power under this legislation. There is nothing unusual in that, it is the normal practice.

Deputy Jim O'Keeffe suggests that the House has become a rubber-stamp for subordinate legislation. However, the whole point of subordinate legislation is that the Minister is the person who decides what the legislation is, not the Houses of the Oireachtas. That is the reason we have subordinate legislation, to allow the details and practicalities of the legislation to be worked out within the framework prescribed by the Oireachtas. There are procedures in the Houses for reviewing subordinate legislation when an issue arises as to whether a Minister has gone wrong in some way as regards practices concerning subordinate legislation.

I would not like Deputies to be under the impression that the Minister will not publish these regulations. All these regulations will be in the public domain. In fact, what Deputy Costello is proposing is an additional bureaucratic requirement because it means that under this legislation every statutory instrument will be submitted to the Houses of the Oireachtas.

The Minister of State makes the very point I am advocating. Let us be blunt about it. Promulgation in Iris Oifigiúil is about as public as promulgating it in Pravda or Izvestia if those two worthy journals are still in circulation.

Is the Deputy not a regular reader?

The Daily Record.

The Minister of State says there is no question of doing it in secret, but that is the effect. The documents are drawn up and are publicly available if one knew and was a regular reader of Iris Oifigiúil. The Minister of State’s last point is the really important one, which reverts to my first point — it is a question of the power we give the Minister in the Bill. That is why we need to examine carefully the powers we grant the Minister in the legislation to make regulations. Effectively, once we have done that we have washed our hands of it and the Oireachtas will have no further function in the matter. That is my worry.

At one stage I thought there should be a requirement that any regulation of consequence should be laid before the Houses and require a positive resolution of the Houses before it came into effect. That would force the issue into the public domain. What happens now, effectively, is that regulations are laid before the House but people are unaware of them. They lie there for 21 days, after which they become the law of the land, again without anybody's knowledge. I would question the use of that process concerning some of the issues that arise in this Bill.

The Minister of State has put forward a plausible presentation of the case but the other side of the case — that we are handing over enormous power to the Minister — is more plausible. We pass the legislation but the Minister puts in place the substance of implementing the legislation in so many areas in this Bill. This is particularly so when one examines sections 114 to 116, inclusive, concerning Garda discipline, organisation and operations, not to mention the community policing guidelines. The Minister at his sole discretion will determine these matters. There may be some consultation with the Commissioner from time to time but there will be no referral back to the Oireachtas, good, bad or indifferent.

Standard best practice demands that level of accountability whereby such regulations are placed on the floor of the House. It is not overly bureaucratic to do that, so I do not see how the Minister of State can have a problem with it. It is best practice and is not a problem for anybody. The problem is in drawing up the regulations and implementing them. There is no problem in leaving them on the floor of the House for 21 days in order that they can be inspected and dealt with. The Minister of State says he does not intend to do that, because the Minister has all the power. That does not amount to accountability or transparency. We do not have any oversight concerning much of this legislation because we are handing the Minister full discretion on how to regulate it.

Earlier, I raised with the Minister, Deputy McDowell, the question of the guidelines in section 31, which will be exceedingly important as regards the operation of community policing. Section 31 provides that "The Minister shall issue to local authorities and the Garda Commissioner, guidelines concerning the establishment and maintenance of joint policing committees by local authorities and the Garda Commissioner". The Minister goes on to cover some of the areas. Surely, the very best the Minister can do is to let us look at the draft or lay it before the Houses in some way in order that they can be examined and there can be some comeback if there are serious problems with some of them. Their purpose is that they work. If they are not going to work, we might as well throw the legislation away because all the best ideas are of little value unless there is a mechanism which is properly regulated. The guidelines will deliver the service and so on.

Without resiling from my general stated position on this subject, which I am advised is in accordance with general statutory requirements, a distinction is drawn between matters which should be laid before the Houses and more technical matters which should not be. For example, where disciplinary regulations are drawn up under the appropriate section in Part 6, clearly there would be a very wide consultation process with the various interested parties involved. The eventual format of those regulations would be very detailed and technical and would not be appropriate to be laid before the Houses.

Deputy Costello made a very fair case regarding section 31 and the guidelines which are also very germane to the functions of the Houses of the Oireachtas because they relate to the whole concept of representation in this area. We will certainly look at that issue to see whether in the context of that section, we can lay the guidelines before the Houses.

I find the Minister of State's response somewhat breathtaking. Regulations in regard to discipline are not to be laid before the Houses because there has been consultation outside the Houses and because they would be too technical. I am not so sure this could be regarded as a compliment to Members of the Houses. We will return to this issue when dealing with the relevant sections because a different approach would be adopted in regard to different sections. That is where the substantive discussion can take place.

Is Deputy Costello withdrawing amendment No. 2?

I am not sure if I should withdraw it as there is a point of principle involved.

We will come to each of the areas in which there are regulations. I am sure the Deputy will mention it again.

I may reintroduce the amendment on Report Stage.

Amendment, by leave, withdrawn.
Section 4 agreed to.
Section 5 agreed to.
SECTION 6.
Question proposed: "That section 6 stand part of the Bill."

I tabled an amendment to section 6 but I do not see it on the list.

I do not see it either. It is not on our list.

I tabled an amendment to add a subsection (3) which states that in achieving its objectives and performing its function, the gardaí shall have available to them modern and effective communications systems and leading-edge technology for the recording of crime and the collation of data. I see it has been transferred to section 7.

Section 6(2) states that the Government may continue to maintain equipment and pay the Garda Síochána. I would have thought the word "shall" would have been used instead of "may". Is there a possibility the Government will pull the plug?

In the same way it has done with the State Pathologist.

It is like child care, RAPID and so many other areas where funding has——

Will the Government ground the entire force?

I thought that once Charlie McCreevy had gone, there would be no one——

There should be no dereliction of duty and that is why the word "may" should be changed to "shall" so that one of the institutions of State will be fully equipped on a continuous basis.

We had better inform the Garda representative associations or else there will be uproar.

I assure Deputies it is the intention of the Government to continue to maintain equipment and pay the Garda Síochána. As to whether one is required to clothe that intention in statutory vesture, it would be much safer to state the Government may continue to maintain equipment and pay the Garda Síochána.

There are instances in the past where the words "may" and "shall" have been used and I understand the argument the Minister for Finance often makes for the use of the word "may" but in this case, he can have no doubt. The Government must continue to maintain equipment and pay the Garda Síochána.

I would like to get some clarity as Deputy Ó Snodaigh raised an interesting point. Is the force entitled "An Garda Síochána" or "the Garda Síochána"?

It is still a moot point. Either the Government is to have a police force or it is not. It should not be as tentative as it is. If I was a member of the Garda Síochána and that was the only commitment the Government was prepared to make to my salary, I would feel a bit insecure. The Government should show its commitment and bona fides in regard to policing and commit itself to paying and, indeed, equipping gardaí. There is a serious problem with equipment. We heard from the Garda conference that the technology leaves a lot to be desired in terms of its effectiveness. There should be some obligation on the State to pay the Garda Síochána.

Of course, there is an obligation to pay members of the Garda Síochána. When they perform their duties in accordance with the regulations, there is a statutory right to be paid and that is dealt with in the subordinate legislation under this Bill. What Deputies want — I notice no amendment has been tabled — is to insert the word "shall". That would leave the Government exposed to actions by persons who maintain, for example, that the Government had not equipped the Garda Síochána in a particular locality in the way they would like it to be equipped——

In any locality.

——or it would expose the Government to an action for payment by a member who had perhaps not performed his or her duties.

We are not talking about a member of the Garda Síochána. This refers to paying the force, whether An Garda Síochána or the Garda Síochána. This must be policy. It should state that it shall be the responsibility of the Government to pay for the upkeep of the Garda Síochána as a force.

It is the responsibility of the Government but it is not something which should necessarily be cast in strict statutory language——

Perhaps it should not have been included at all if the Government cannot make a commitment.

——in general terms at the commencement of legislation which contains the relevant details.

Is it discretionary for the Government given the use of the word "may" in that regard?

It is discretionary from the point of view of equipping the force. With 20 year old, out of date equipment——

We were looking for a response from the Minister of State.

——it is not being done properly at present.

We are enacting legislation and we are setting a headline in section 6(2). It enables the Government to maintain equipment and pay the Garda Síochána. It does not oblige the Government to do so and that is the key point. Of course, in the outworking of the legislation, in the detailed regulations which the Minister will adopt and in subsequent provisions of the legislation, a right to payment for individual members is spelled out as is the necessity of equipping and maintaining the force. That scaffolding is there but it is not essential from a legal point of view to state the Government "shall". In fact, it could be quite dangerous because it could leave the Government open to legal actions from person who are aggrieved that the equipment provided in their area is not what they want.

In all these matters, priorities must be set. It is not appropriate for the courts to pass judgment on the equipment of the Garda Síochána. That is a circumstance which would arise if the mandatory word "shall" was inserted in section 6(2). There could be a judicial investigation into the appropriate character of——

An amendment can be tabled on Report Stage.

It does not state it must be maintained at the highest standard or equipped with the latest technology. The Garda will receive the money and then decide on priorities. That responsibility will be handed over to the inspectorate, which will decide whether the money is expended efficiently. The section provides that the Government is obliged to provide a sum to the Garda to maintain the force but it does not provide that the force must be maintained to the highest standard. The logic of the Minister of State's comments is that every time new technology is introduced anywhere in the world, the Garda should introduce it but the section does not provide for this. The Government makes a commitment that, regardless of the state of the Exchequer, this priority must be met, similar to the Defence Forces, and that is why the word "shall" should be substituted for the word "may".

It never ceases to amaze me how Opposition Members want to reduce their functions under the Constitution or transfer functions from the Houses of the Oireachtas to the courts. The use of the word "shall" would permit a judicial investigation into the issue of whether the Government had properly, maintained, equipped and paid the Garda rather than having the discussion where it should take place, in the Oireachtas. The power of decision on that matter would be transferred from the Houses to another forum.

The Minister makes the decisions and he takes little notice of our comments when we complain about the desperate equipment the Garda must use.

What is the purpose of the word "may" if it is so tentative? The opposite is "may not". He would be better avoiding the word, thus avoiding the courts as well. The issue is the force not its maintenance, equipment or pay. For example, the Garda might not pay the increase in the minimum wage the Government announced. It does not make sense to include the word.

It does because the force must continue.

If the Minister of State is worried about the courts, he should delete the sentence. Is he saying the Government may have a police force, which it may maintain, but to avoid the courts, the Minister will not tighten this provision further? He might as well not include it.

If the Deputy wishes to delete section 6(2), he can table an amendment on Report Stage. He has raised the issue and we will examine the implications of deleting that subsection.

Question put and agreed to.
SECTION 7.

Amendments Nos. 4 and 7 are related to amendment No. 3 and all may be discussed together.

I move amendment No. 3:

In page 11, subsection (1)(b), line 18, after “property” to insert the following:

"and the human rights of individuals within the State.".

Gardaí do not spend as much time protecting life and property as they do protecting the fundamental rights of citizens. The first function of the Garda is to serve the people and that should be written into the legislation. Much of the work of the Garda relates to protection of fundamental rights, not life or property. That should be reflected in the section.

I tabled the other amendments, the first of which relates to human rights. I am surprised that something as fundamental as the protection of human rights is not deemed sufficiently important to be a key function of the Garda. This amendment emanates from a submission by the Human Rights Commission. The Minister referred to advocates of human rights as part of "the human rights industry" but his personal views should not be reflected in legislation. There is a general consensus that the protection of human rights is important in our democracy. This is probably also a consensus that, apart from the functions of the Garda in preserving peace and public order, protecting life and property and the security of the State, preventing crime, bringing criminals to justice and regulating and controlling traffic, respecting human rights is sufficiently important to be included as a function.

Section 7(4) states that in performing its functions the Garda "shall have regard to the importance of upholding human rights". It would also be appropriate to refer to the Garda ensuring fair and equal treatment and respect for all. One could take that as a sine qua non. It should be taken as read but, at the same time, it would be no harm to spell it out in this fundamental legislation. I would not go to the wall on the issue but it should be spelt out.

My amendment is similar to Deputy Costello's in that it proposes the promotion and protection of human rights and perhaps that should be put before the protection of life and property. Section 7(4) is too weak. The protection of human rights should be a core value of the Garda and the opportunity should be taken in reforming the force to reflect international instruments starting with the protection, promotion and upholding of human rights. The human rights ethos of the Garda could flow from that and we are all striving towards that. I hope that will be pervasive. Changes have been made in training of gardaí in human rights issues and so on and that is welcome. It needs to be ensured that this function should be included.

Deputy Costello referred to the protection of people and communities and that should also be a core value. It should be included in this section.

This section refers to bringing criminals to justice. Is one a criminal before or after one is brought to court? Is it an appropriate term, or should the term be "offenders"? I am not making a major issue out of this. I understand what is meant but perhaps it is about making a decision the courts should make.

The Garda Síochána currently plays a role regarding immigration. I have argued that this is not necessarily the appropriate body to deal with all aspects of immigration, therefore, I may table an amendment on Report Stage.

Does section 7(6) relate to a disclaimer whereby the shop owner has no responsibility for damage to his or her property? Is this provision a normal part of legislation, because I have not come across it previously, or is to ensure that members of the Garda are not open to challenge in the courts?

I will deal with section 7(1)(e) regarding bringing criminals to justice, including detecting and investigating crime. Under the Constitution, the exclusive jurisdiction to administer justice in criminal matters is reserved to the courts. It cannot be exercised by any other person. We should examine the formula that is used. It might be a little loose, therefore it might be worth tightening it up. For example, the reference to “criminal” might be replaced by a reference to “the perpetrator of a crime”.

On the main issue, the approach taken in the Bill is that in performing its functions, the Garda Síochána shall have regard to the importance of upholding human rights. That is the court provision in section 7(4). It states, "In performing its functions, the Garda Síochána shall have regard to the importance of upholding human rights." The philosophy of the legislation is very consistent with the protection of human rights. The intention behind the provision is to ensure gardaí are cognisant of the obligations on them to keep human rights matters foremost in their minds when carrying out their duties. It is intended to apply to the "hard rights" which, of necessity, come into play in interactions between the individual, the criminal law and the forces of law and order.

I want to draw the attention of Deputies to the provisions set out in sections 15 and 16 of the legislation. Section 16(1) establishes a code of ethics that includes standards of conduct and practice for members of the Garda Síochána. In preparing such a code, section 16(3) requires the Commissioner to consult with a number of bodies, including the Human Rights Commission, an important industry established by the Minister.

Ms Hoctor took the Chair.

He disagreed with it last year.

They are not always right. The people had a profound disagreement with him last year.

The Minister is of the view that the Bill as drafted encapsulates the concept of human rights. Each member of the Garda Síochána will be required to make before a peace commissioner a declaration under section 15, which includes the paragraph as follows:

I will faithfully discharge the duties of a member of the Garda Síochána with fairness, integrity, regard for human rights, diligence and impartiality, upholding the Constitution and the laws and according equal respect to all people.

That is the fundamental provision — the actual declaration a garda must make before a peace commissioner. It encapsulates much of the substance of the amendments tabled by the Deputies. The issue of human rights features in the area of conduct and in the solemn declaration which is effectively the oath of office.

As I already said, a third area is the requirement under section 7(4), the general requirement I mentioned already, that the Garda Síochána must perform its functions having regard to the importance of upholding human rights.

To go further as the amendment suggests, and to include it as a function of the Garda Síochána to enforce or protect human rights, places members of the Garda Síochána in the position that part of their function would be to stop all torts and embark on a broad mission equivalent to that of the Human Rights Commission. The functions of gardaí relate to policing in general terms. They must have regard to human rights. They have very difficult decisions to make, and to extend the ambit of human rights in the manner suggested could put individual members of the Garda Síochána in a difficult position. The value of human rights is incorporated in the declaration. It is better to do this than to pretend it is one of the functions of the Garda Síochána to protect the entire panoply of human rights. Non-criminal and non-policing matters comprehended in human rights are outside the province of a police force.

I thank the Minister of State for arguing that case. I am not sure it demolishes effectively our arguments. What we have in section 7(4) is a relegation of the duty of the Garda Síochána in performing its functions. It states that the Garda Síochána shall have regard to the importance of human rights. All gardaí must do is have regard to the importance of upholding human rights. It does not even say they must uphold human rights. They must have a chat with their colleagues about the importance of upholding human rights. There is no burden in terms of a duty of best practice to uphold human rights.

I acknowledge that the oath in section 15 reads, "I will faithfully discharge the duties of a member of the Garda Síochána with fairness, integrity, regard for human rights...". It does not refer to upholding human rights. The word "upholding" is missing on all occasions. It refers to having regard for the importance of human rights. The upholding of human rights is lacking in both areas.

Section 7 refers to the functions of gardaí. The protection of life is a human right. If we are to protect life, other fundamental human rights should be included. The Minister made the point that it is not the business of gardaí to go around protecting human rights, which is correct. That is the business of the Human Rights Commission, the Minister and many others. However, in terms of the functions of gardaí, it should be included in the Bill. They are required to provide policing, security services and protect people only in so far as it is their duty and their area of operation. Upholding human rights should be included at this level, not just having regard for the importance of human rights.

The Minister of State's explanation leaves a little bit to be desired when it comes to the importance of other human rights besides the protection of life.

I endorse what Deputy Costello said. We have trawled the ground fairly well. It is my intention to return to this issue on Report Stage.

Is the amendment being withdrawn?

Does the Minister of State wish to reply?

The Deputy raised certain questions which deserve a reply. I cannot speak for the Minister in this respect but I do not think I have a philosophical disagreement with what Deputies opposite are saying. However, they are seeking to make it a function of the Garda Síochána to respect the human rights of each individual. One can take the example of the right to life to which Deputy Costello referred, but it is expressly referred to in section 7(1)(b) that gardaí protect life and property.

Leaving that aside for a moment, let us consider the abstract issue of the right to life. The way the Garda Síochána protects the right to life is through the existence of the defined criminal offence of homicide, broken into different categories relating to murder and manslaughter. Where such conduct comprehended by the definition of that offence takes place, the Garda conducts an investigation and brings the perpetrator to justice before the courts. That is how the Garda secures human rights. It does not secure them in the abstract sense by saying there is a right to life and asking how it should secure that right. The right to life is secured in our criminal law by the existence of an offence of murder.

This principle goes through to all the other human rights. The right to property, which is viewed in certain circumstances as a human right, is protected through the existence of offences relating to theft, robbery, burglary and so on. This is how the Garda Síochána approaches human rights. It enforces criminal law. It is the definitions of the criminal law that define exactly what the Garda Síochána does. In exercising investigative powers in these matters, gardaí have wide and extensive statutory powers of search and arrest and the like. It is very important that they exercise those powers in accordance with the statues that confer them.

To introduce a concept such as human rights in this particular context, introduces a great deal of vagueness into the functions of the Garda, because some human rights are not confined to civil and political freedoms, property rights or the right to life. They can go well beyond these to embrace family rights and rights in the social, economic and cultural spheres. We all know this as a result of the debates and discussions we have in the Houses on a wide variety of topics, from the health service to education.

To introduce a concept as a function of the Garda Síochána would introduce some confusion as to the precise role of the Garda. That said, respect for human rights is something that must be part of the culture and thinking of the Garda Síochána. That is the reason for section 7(4). It does not subordinate respect for human rights. One must remember that sections 7(1), (2) and (3) all relate to functions, the defined hard core functions of the Garda Síochána. Section 7(4) states: "In performing its functions, the Garda Síochána shall have regard to the importance of upholding human rights." That is implemented by incorporating a reference to it in the declaration a garda must make on enrolment in the force.

This is all provided for in the legislation. A balance must be struck. Clearly, the philosophy of human rights and the importance they have in a modern civilisation are fully acknowledged in the legislation. It is a question of being precise about the exact functions of the force.

The Minister of State appears to be saying that the provision in section 7(4) is too broad and extensive to be included in section 7(1). Could the provision be strengthened in section 7(4) and changed to something such as, "In performing its functions the Garda Síochána shall uphold human rights at all times"?

That makes it an additional function.

Only in the performance of duties. In other words we are not saying the broad function of the Garda is to do so.

We can look at that issue.

If all we include is the phrase "have regard to the importance", what does that mean? It is not a duty nor a strong requirement to uphold human rights. It only tentatively looks at the importance of upholding human rights. A formula is required that would give gardaí responsibility when they come up against the issue in the performance of their duties. Human rights should be a duty therein.

We can examine any amendment the Deputy tabled, but I am not sure there is an amendment in those terms before us. I would have to examine the precise terms of the amendment to consider it.

Perhaps something could be put in for Report Stage.

The same goes for amendment No. 4. As we will come back to it on Report Stage, I will withdraw it.

I did not say we would report such an amendment. I said we would examine an amendment.

I thought the Minister of State had full authority to accept amendments.

I do not. I do not want to be reported ——

The Minister of State would not want to pre-empt the reshuffle.

Amendment, by leave, withdrawn.
Amendment No. 4 not moved.

I move amendment No. 5:

In page 11, between lines 29 and 30, to insert the following subsection:

"(3) In achieving its objectives and performing its functions, the Gardaí shall have available to it modern and effective communications systems and leading edge technology for the recording of crime and the collation of data.".

We discussed the question of equipment earlier and gave an enabling provision that the Government may continue to maintain and equip the Garda Síochána. The Minister of State may have gathered during that discussion that there is a level of dissatisfaction, to put it mildly, with the out-of-date equipment with which gardaí are expected to work. I want it established that the Garda should have available to it modern and effective communications systems and leading-edge technology.

Let us consider the two main areas. In the IT area we have PULSE which has been around since 1999, but has not fulfilled the functions for which it was established. It is installed in only 181 out of 783 Garda stations, approximately one quarter of them. We have a ridiculous situation where gardaí have to walk, drive or cycle to central Garda stations to record data on the PULSE system. The system is slow to boot up and I am told an internal circular has been written — I do not have a copy of it — telling members not to use it for the issue of summonses. We, particularly Government, have a responsibility to ensure gardaí are provided with systems that work properly.

The situation regarding communications is little different. Gardaí operate with 20 year old walkie-talkies that are totally open as they have no security encryption. Many gardaí feel they are better off using mobile phones. There are, however, black spots in the country where mobile phones are of no use.

I mentioned earlier that Fine Gael fully supports having the best police force in the world. To have that, gardaí must be provided with the best technology. We cannot expect them to operate with the equipment they have currently. Therefore, it would be helpful to include in the Bill a provision that best technology be made available to the Garda Síochána. I hope the Minister of State rushes to support, endorse and agree this amendment immediately.

I support the amendment 100%. I can see now why the section 6(2) provision that "The Government may continue to maintain, equip", etc., was included. It seems the Government is not prepared to take any responsibility for the business of equipping the Garda properly. Recent accounts from the Garda Representative Association indicated a very low level of morale regarding modern technology and communications. I refer to the case of the poor female garda whose telephone was damaged by a glass of water or beer thrown in a public house. She was unable to summon help from her colleagues. She was being intimidated and it was a serious situation. Her colleagues came looking for her because she had been away a long time.

There is a shortage of basic items such as pens. Deputy Jim O'Keeffe has commented in detail on the PULSE system. It is a very ineffective system which has been badly handled. People must travel distances to input material. The walkie-talkies are out of date. A colourful description of the state of Dundrum Garda station was published in yesterday's newspapers. It is described as having been at the top of the list for refurbishment 20 years ago but is now at the bottom of the list. This is not leading edge technology but it means gardaí are operating in outdated and impractical facilities which do not allow them perform their duties in a proper professional manner.

An amendment of this nature is important to ensure gardaí can function effectively with modern communications and technology.

Does the Minister of State wish to respond?

I wish to respond on behalf of the Minister. He maintains the subject matter of both amendments is not appropriate for inclusion in the Bill. It is a matter for the Government to allocate resources as between the various interests seeking allocations of funding from the State, having regard to policy as decided by the Government in particular areas at different times.

With regard to the matter of the Vote for the Garda Síochána the precise details are determined in conjunction with the Garda Commissioner. It would not be appropriate to impose a statutory obligation on the Minister to secure resources although of course the Minister has political responsibility in the Houses, together with the Minister for Finance and the other members of the Government, for the amount of resources secured.

The question of the allocation of resources is not a matter for the Minister but is the responsibility of the Commissioner.

I have strong views on this issue. We should not be sending young men and women out into the field against hardened criminals without giving them the best and most modern equipment and for this reason I will press the amendment.

Deputy Ardagh took the Chair.

Amendment put.
The Committee divided: Tá, 3; Níl, 7.

  • Costello, Joe.
  • Murphy, Gerard.
  • O’Keeffe, Jim.

Níl

  • Ardagh, Seán.
  • Hoctor, Máire.
  • Lenihan, Brian.
  • O’Connor, Charlie.
  • O’Donovan, Denis.
  • Ó Fearghaíl, Seán.
  • Power, Peter.
Amendment declared lost.
Progress reported; Committee to sit again.
The select committee adjourned at 2 p.m. until 9.30 a.m. on Tuesday, 3 May 2005.
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