I welcome the Minister for Justice, Equality and Law Reform, Deputy McDowell, and his officials. We are here to resume our consideration of Committee Stage of the Garda Síochána Bill 2004.
SECTION 7.
Garda Síochána Bill 2004: Committee Stage (Resumed).
I move amendment No. 6:
In page 11, subsection (3), line 31, to delete "Síochána's functions are to" and substitute "Síochána shall".
The manner in which the text is presented is somewhat inelegant — "In addition to providing policing and security services, the Garda Síochána's functions are to provide any other services and perform any other functions". That is a little tautologous, and for the sake of tidiness it might be re-worded to say that the Garda Síochána "shall provide any other services and perform any other functions". That would improve the quality of the English and make for a better draft.
This was the subject of debate in the Seanad. I understand there was a consultation with the Office of the Parliamentary Counsel in respect of it, but I remain unhappy with the phraseology of subsection (3), in particular the reference to the Garda Síochána's function "to perform any other functions".
It is a little inelegant, to say the least.
Yes. I am not happy with it and will return to it on Report Stage. I do not know what "a function to perform a function" is. It is like being told in school about sine and cosine, and sine squared and cosine squared. We are almost into metaphysics when talking of "a function to perform a function".
Sine squared equals cosine squared?
Sine squared x plus ——
Plus one or minus one.
Equals one, or something. I could never work that out.
Even if the word "functions" was not repeated again, the reference to the Garda functions being to perform any other functions is somewhat ungrammatical as well as being inelegant. If it were to say that the Garda Síochána's role is to provide any other service——
I agree with the Deputy that the present wording is not the most elegant. I am sure we can do better.
Amendment, by leave, withdrawn.
Amendment No. 7 not moved.
I move amendment No. 8:
In page 11, lines 40 and 41 and in page 12, lines 1 to 6, to delete subsection (6).
It seems that the entirety of section 7 up to this point is quite attractive in that it provides for the various functions and the role of the Garda. However, this is followed by a massive disclaimer or opt-out clause which seems to negative almost everything said before. The Garda Síochána will, it says, not be required to perform a function or provide a service referred to in the section, or to desist from any action. If there is such a broad disclaimer or opt-out clause with regard to any of the duties prescribed, what is the sense in prescribing them? Nothing in the section requires the Garda to do anything. Nothing aforesaid would require the Garda to perform a function or provide a service referred to, or to desist from any action. This is in the manner of a grand disclaimer. Never mind what we said before about what looks good, sounds good and is good, if this section were taken out, this little barb is nevertheless inserted, which negatives and nullifies virtually everything in the section so far.
Is there any need for such a disclaimer? There is already a caveat in section 6(2) to the effect that the Government "may" continue to maintain, equip and pay the Garda Síochána. Surely the gardaí have important functions, namely to preserve peace and order, to protect life and property, to oversee the security of the State and to prevent crime. These functions are too important to allow for such a broad opt-out provision at the end, to the effect that the Garda does not have to perform these functions at all.
We are leaving aside the issue of seeking damages from a member of the Garda Síochána whose performance or failure to perform such functions or provide such service. There are many court actions with regard to the failure of the gardaí to act or behave appropriately. These cases often involve considerable compensation, and payments to members of the public, because of inappropriate behaviour.
The general opt-out clause is not appropriate in these circumstances, when the Bill in effect outlines the functions and duties of the Garda Síochána. We all know those functions and duties are onerous. They involve great responsibility and relate to the heart of good order in our society. I ask the Minister to consider deleting the section. We would then be clearer regarding where the Garda stands with regard to its role, duties and performance of its functions.
This matter was also debated at great length in the Seanad. I will remind the committee of what I said there. We are dealing with a subsection which first, makes the performance and non-performance of a garda's duty not capable of being regulated by injunction, and, second, non-justiciable from the point of view of a claim for damages, to the extent that this section could be construed as widening or creating such an obligation. This section is not taking away any rights that currently exist but it makes clear that it is not conferring any additional rights on individuals.
To accept the amendment would open up the prospect that an action could be taken on the basis that despite the best efforts of the Garda Síochána, there was public disorder in a particular area, or that a premises was set on fire. As I indicated in the Seanad, we do not want a situation where the protection of life and property, as set out in section 7(1)(b), confers on an individual property owner the right to sue the Garda Síochána if his or her property is destroyed, notwithstanding the force's best efforts. This would create a new form of civil tort whereby the State would be liable for damages if the Garda Síochána, culpably or not, failed in its duty or function to protect life and property. It would also expose the State to potentially enormous claims for damages.
When stating the purposes of a body, one does not want, necessarily, to imply the creation of a statutory duty. Whether or not a statutory duty creates a right of action on the part of individuals, is a matter of statutory construction. The classic law on this says that one looks to the Act to decide whether the Oireachtas intended to create a personal individual right for somebody who suffered as a result of a statutory duty not being complied with.
I am worried that the phrase "a function" might be interpreted by a court as creating a duty and that therefore the courts would either regard the section as giving them a right under judicial review to direct the performance of a function or the supply of a service; also, to confer damages on an individual where there was a failure to perform a function or to supply a service, in accordance with the section.
If I were to agree to the removal of subsection (6), not only could it be so construed, but in fact it would be actively construed as changing the law so as to enable this to happen. I believe the courts would look at the legislative history of this Bill and say that a protection of the type that I have in place was being explicitly removed. It could suggest that I was doing so for the purpose of allowing people to have additional rights to sue for injunctions and for damages.
The second point is that this is not to be taken to confer on a person a right in law that he or she would otherwise not have. Whatever rights people have at the moment are preserved by this and not amplified by it. It does not confer on any person a right in law that he or she might not otherwise have to require the Garda to carry out a function or to require the service referred to in the section, or to desist from action. That, too, is important. If that provision were not included, a person could maintain that his or her property was being constantly vandalised and could go to the Circuit Court or the High Court to obtain an injunction requiring a garda to be stationed outside the property to protect him or her. Such a provision would be very acceptable to some people, but would also mean that the courts would decide everything and the Minister and Garda Commissioner would be told by the courts how the Garda Síochána was to conduct policing in Ireland.
The same applies to damages. The limitation on damages only applies on cases where at the moment a person would not have a claim for damages, except for this section. If a member of the Garda Síochána fails to perform his or her function as envisaged by this section, that does not, of itself, give rise to a separate claim for damages on behalf of an aggrieved or dissatisfied person, who claims that he or she has suffered loss as a consequence.
The more I think about it the more essential it is that this subsection be included and it would be a mistake to remove it. Its removal would turn the section into a charter for litigation against the Garda Síochána, creating both an injunctive and also a compensatory jurisdiction. It would mean the gardaí would lose all their freedom of action. I have to tell Deputy Costello that I am not at all tempted to go down that road.
There was a little slip on my part in that the Bills Office have informed me that this amendment is out of order because it may cause a charge on Revenue if the people in question were allowed to go to court on these matters. It is not in order that we discuss this at all.
I was aware of that, but I decided that if I appealed to the referee, I would be accused of dodging the issue.
How is it that this could be discussed in the Seanad, but not in the Dáil? Could we get a ruling on that?
The Ceann Comhairle has decided, at this point.
I was going to accept the authority of the Minister's argument. It was very persuasive.
That is excellent. I want to thank both the Minister and Deputy Costello for being so gracious about the matter.
Amendment, by leave, withdrawn.
Question proposed: "That section 7 stand part of the Bill."
At the outset, section 7(1)(a) refers to the functions of the Garda Síochána to provide policing and security services for the State. Will the Minister not agree that it should start with something to the effect that the Garda Síochána’s first objective is to serve the people of the State or the citizens of the country, before it comes to preserving peace and public order and protecting life and property? The Garda Síochána should have a role of service, to the State and to the people, and there is no reference to that here. The Garda is preserving, protecting or preventing and bringing criminals to justice, but there is no reference to it serving the people in a policing role. That would be a worthwhile objective if it could be incorporated in some fashion.
Are there any further comments on the section?
It is acceptable overall. The balance is about right.
I agree that section 7(1), paragraphs, (a), (b), (c), (d), (e) and (f), appear to have the character that Deputy Costello refers to. However, the wording of the introductory clause, as set out in section 7(1), is, “The function of the Garda Síochána is to provide policing and security services for the State...”. The State is the people’s State. All of us are republicans.
The Garda is somewhat different from the Army. The security service is for the State. To serve the State is one matter, to serve the people is another.
It is really a question of serving the people of the State, rather than the State. To some extent, it is an abstract concept.
There is no reference to either people or citizens.
I do not want to get into high metaphysics, but the State is the creature of the people and bound to act in accordance with the Constitution set out by the people.
It is a corporate entity as distinct from a personal service. Citizens have rights that are different from the State's rights and need.
Perhaps the Minister might consider an amendment for Report Stage.
I will look at it to see if a distinction may be made.
Question put and agreed to.
SECTION 8.
Amendments Nos. 9 to 13, inclusive are related, and will be discussed together by agreement.
I move amendment No. 9:
In page 12, subsection (3), line 16, after "Director" to insert "of Public Prosecutions".
These amendments follow from further consideration of the section by the Director of Public Prosecutions. This section, as a whole, deals with the question of the prosecution of offences by members of the Garda Síochána. It is designed to reflect the current position in this area. Members of the Garda Síochána, as a matter of practice, no longer institute legal proceedings in their own names, as common informers. Following consultations with the Director of Public Prosecutions, I tabled an amendment in the Seanad on Report Stage to reflect a point made by Senator Tuffy, with respect to subsection (3) of the section. It inserted the words "In deciding whether to institute and in" at the beginning of that subsection. However, in the course of looking at the section in the round, the DPP has indicated that he is concerned about a further matter arising from this section, which I will now explain.
Subsection 8(8) provides for the making of general and specific directions. A general direction applies if the matter relates to a class of prosecution. A specific direction, on the other hand, applies if the matter relates to the prosecution of a person for a specific offence. Deputies will appreciate that specific directions are frequently given orally, late at night, and in circumstances of some urgency, concerning the detention of prisoners, the charging of suspects and other matters.
Subsection 8(4) lays down a statutory requirement for the DPP to consult with the Garda Commissioner with regard to the making of both types of direction. Clearly, it would not be desirable that the DPP has to consult late at night with the Garda Commissioner about whether or not to institute, say, a murder charge, to direct that somebody goes before the Special Criminal Court or whatever.
The DPP has advised that this necessity to consult with the Garda Commissioner before giving, varying or rescinding specific directions would be cumbersome in the extreme and very difficult to effect without causing major inconvenience. Accordingly, the amendment proposes to repeal the words "After consultation with the Garda Commissioner". This will also remove the requirement of consultation on general directions. That is not problematic, because by their nature such directions arise in a much less urgent and immediate context. The present administrative procedures which are the norm in these cases will continue to apply. In these circumstances, the making of a pre-requirement for consultation is clumsy and it would be better to remove it in its entirety.
Let us consider the case of a garda in Ballydehob who wishes to prosecute someone for not having a light on his or her bicycle. Will that prosecution have to be brought with the approval of the DPP and in the name of the DPP?
It would have to be brought in the name of the DPP and on his authority. He may, in those circumstances, give his authority to members of the Garda Síochána. It has been possible for members of the Garda Síochána to institute criminal proceedings as peace officers and to use their own discretion in the matter. I am not trying to remove their discretion, but if they are instituting a public prosecution, as distinct from a private prosecution, the DPP is the person in whose name and on whose authority they must bring it. The Deputy may wonder if this is a good or a bad thing.
I am just thinking of the practicalities.
In general terms, prosecution authority for something like the Road Traffic Act will be conferred across the force. Let us suppose that a prosecution for an assault on a garda in the due execution of his duty under the Non-Fatal Offences against the Person Act was instituted. In such a circumstance, since it is a public prosecution, it is desirable that it be brought by reference to public criteria and not by reference to the individual judgement of an individual garda who might have been involved in the incident. That is not an academic matter. In spite of the fact that there was a direction by the DPP that prosecutions of this kind were not to be instituted, as well as an internal Garda rule that they were not to be instituted by members concerned, it was done nonetheless in a recent case. The consequence of that was that a public prosecution was instituted in circumstances where the individual making the decision was also involved in the incident.
I am trying to uphold the constitutional value that public prosecutions are brought on the specific instruction of the DPP or on his general authority given to members of the force. The DPP should be in a position, therefore, to stop a prosecution even at summary level. If the Deputy made a private complaint against me that goes to trial on indictment, the DPP must take over the prosecution and can kill it if he thinks it has to be killed. I want a situation where summary proceedings are also within his ambit and that a member of the Garda instituting a public prosecution does it with the express individual authority of the DPP or on his general authority. The DPP remains the master of that litigation.
I want to clarify this. In practical terms, we can expect that the DPP will issue a general direction to the Garda Síochána that it has authority to institute prosecutions under a whole range of minor offences under the Road Traffic Act and so on. It is only in cases that are specifically set aside under sections, such as dangerous driving causing death, that would have to be referred to him. With regard to consultation with the Garda Commissioner, I appreciate the situation that there can be a situation of emergency. However, that seems to be cut out entirely. It seems that there is no need at all under the Bill for consultation with the Commissioner.
My amendments relate to what has been said so far. I welcome the idea that prosecutions should take place in the name of the DPP. It is important that we clarify what might be a unified prosecution service. The manner in which the gardaí prosecuted as common informers had a very vague status. Deputy O'Keeffe raised some questions about the practicalities of the matters that come before the Garda, such as whether or not the Garda operates under a general direction from the DPP. Section 8(6) seems to suggest something of that nature. It states: "If a prosecution is instituted or conducted by a member of the Garda Síochána in the name of the Director of Public Prosecutions-". What does that mean? Is it after direction from the DPP? Is there a general direction in that respect? Does the section mean that in all cases, a prosecution must operate with specific direction from the DPP? Section 8(6) (a) states: “the member is presumed, unless the contrary is proved, to have complied with this section and any applicable direction given by the Director under this section”. That is a kind of an opt-out clause. There is a presumption that the garda is acting in the name of the DPP. Again, it is not clear who initiates the prosecution.
Amendment No. 13 also deals with the DPP. Why should anything at all preclude the DPP? This whole section is surely about asserting the right of the DPP. Should it not be phrased in an affirmative fashion? For example, the DPP shall, at any stage of the proceedings, assume the conduct of a prosecution. There seems to be confusion on where the roles overlap. It seems to suggest that the Garda can conduct the prosecution and the DPP can intervene where he sees fit. I though that the whole thrust of this section is to state that there is one prosecutor and that it is the DPP. The Garda is not the prosecutor and everything must be referred directly to the DPP. However, the section has many opt-out clauses and seems to allow the DPP to come in on a prosecution. I am not sure if it has the clarity that it requires.
The crucial wording here is in the first clause in section 8(3), which states:
In deciding whether to institute and in instituting or conducting a prosecution, a member of the Garda Síochána shall comply with any applicable direction (whether of a general or specific nature) given by the Director of Public Prosecutions under subsection (4).
This makes it clear a garda has a right, as a public official, to decide whether to institute a proceeding, to institute that proceeding and to conduct a prosecution. However, two conditions apply in this regard. First, such action must be done in the name of the Director of Public Prosecutions in a court of summary jurisdiction. As we know, the Constitution provides that proceedings must be undertaken in the name of the DPP or the Attorney General in the case of an indictable offence. Second, it must be done in accordance with an applicable direction given by the DPP under subsection (4).
For example, a garda who finds a person burgling a house is entitled to bring that person before the District Court and charge him or her with the appropriate offence. The garda is not required to seek direction from the DPP in this instance unless the latter has ordered that such direction must be sought in all instances of this offence. In the case of burglaries, the DPP would be very slow to give such a direction. However, the DPP will want a say as to what formal charge is put in the case of other offences such as rape. In regard to homicide, for example, the DPP would want to be consulted as to whether a murder or manslaughter charge should be made against the accused person.
This section accepts the position that members of the Garda Síochána, as officials of the State, may decide whether to institute proceedings, to institute them and to conduct prosecutions. However, any such action is clearly a public prosecution because it must be brought in the name of the DPP at a summary level and must be subject to any directions that are given. In cases where the DPP does not require to be consulted and has not given any direction, the Garda will be free to prosecute in the DPP's name without prior consultation. The DPP might take such an approach in the case of road traffic offences, for instance. Gardaí can thus operate as free agents in certain matters subject to the DPP's right under subsection (7) to take over a prosecution he or she considers unsatisfactory or wishes to direct personally.
This does not mean every garda is an agent of the DPP. Gardaí continue to be entitled to decide to institute proceedings and to institute and prosecute them provided they make it clear they are public prosecutions which are conducted under the rubric of the DPP. Gardaí exercise these powers subject to any relevant general or specific directions from the DPP and subject to the latter's discretion to take personal control of a prosecution for whatever reason. Although the DPP is not party to the institution of a prosecution, because it is taken in his or her name, he or she has a supervisory role to intervene and assume control.
This represents a change in the law because heretofore gardaí were regarded as independent peace officers with their own discretion. This section makes it clear that in regard to summary prosecutions, they will remain State officials with the power to institute proceedings but that this power is circumscribed by the capacity of the DPP to make a general or specific direction which binds a garda in those circumstances.
Subsection 6(b) states:
nothing done by the member in instituting or conducting the prosecution is invalid by reason only of the member's failure to comply with this section or that direction.
Does this mean gardaí can merrily proceed without regard to the direction of the DPP and that there is nothing invalid in a prosecution conducted in such circumstances? Can members of the Garda Síochána ignore the DPP's direction?
It does not mean a garda can ignore the DPP's direction. Members of the Garda must have regard to the DPP's instruction that all rape cases must be sent to him for decision, for example. However, if it emerged half-way through an accused's jury trial on rape charges that this direction had not been complied with, this would not deprive the prosecution of validity. It would be a matter for the DPP to decide how to proceed in such an instance. This section confers a supervisory right on the DPP but does not confer any right on an accused person to invalidate a prosecution by reference to a proposition that authority was not given to a prosecuting garda.
This is similar to agency law. An agent is presumed to act with the authority of his or her principal and the latter can adopt any act by an agent and either stand over it or not. In respect of a third party, however, one does not want a situation where, for instance, a person before the Central Criminal Court on a murder charge could walk away from the process by proving the two gardaí in charge of the case each relied on the other to consult the DPP but neither did so.
Is that what the section means? It seems to provide that in the case of a prosecution in which a garda has failed to comply with the direction of the DPP is not invalid even though the garda has gone against the wishes of the DPP.
If it emerged this was the case during the middle of a trial, the DPP might decide a genuine mistake had been made and that this was effectively irrelevant.
What if it were not a genuine mistake?
In such a case, which would represent an outrageous breach of a direction he or she has given, the DPP can, under the provisions of subsection (7)(a), take over the prosecution.
The Minister already said there is nothing invalid about such a prosecution.
The DPP can take over or stop a prosecution but this subsection does not confer on the accused person the right to investigate lines of authority between the DPP and the Garda and to search for technical defects in the conduct of the proceedings.
If the law is to be changed so that prosecutions are conducted in the name and at the direction of the DPP, is it not better that, where such direction is forthcoming, it should be complied with in all cases? It is preferable that the DPP should not be obliged to intervene in any proceedings.
If we create a strict statutory duty of that type, we will also create a pretext for persons who face a valid murder charge to walk away from it on the basis that a garda failed to consult the DPP in accordance with the relevant direction, whether out of laziness, incompetence, forgetfulness or because of an error of judgment made in good faith. I do not wish to take this approach. The purpose of this section is not to give accused persons the right to have prosecutions thrown out on the basis of the chain of command between the Garda and the DPP in respect of criminal prosecutions. This is to make it clear that the DPP is, to use the Latin phrase, dominus litis, in charge of the litigation and that he or she can take over at any stage and that people exercising the DPP’s authority on the matter, acting on the DPP’s behalf or acting as public officials in the DPP’s name are subject to his or her authority. However, it is not designed to create new let-outs for accused persons.
I wish to raise a further possibility that may arise. Having listened to the debate on this matter, I am, on balance, satisfied with the section. However, we could have a contrary DPP in the future. I am not suggesting that either of the present incumbents could be involved in such a scenario. Are we giving power to a DPP whose contrary nature could lead to difficult situations? This legislation will essentially give the DPP almost untrammelled power in respect of prosecutions. The DPP might become involved in a row with the Minister of the day.
Would it be possible to have a DPP commission as well as an ombudsman commission?
To some degree, and certainly statutorily, the Garda Commissioner is being pushed aside from the consultation process. If, for whatever reason, some sort of stand-off developed between the DPP and the Garda Commissioner, will this legislation lock us into a situation that could cause tremendous problems? I will develop the point further. The DPP could cease to be compos mentis or something similar, or suggestions could be made to that effect. I re-emphasise that I am speaking theoretically. However, we are enacting a law that will apply for a long period. Does the Minister envisage any difficulties that could conceivably be created for ourselves or the State in the future because of the manner in which powers will be concentrated in the DPP’s hands?
The Prosecution of Offences Act 1974 is the legislative basis for the Director of Public Prosecutions carrying out functions which were ordinarily vested in the Attorney General under the Constitution of 1937. The Act provides for situations where the DPP ceases to be compos mentis or must be removed. It also provides for situations where the Attorney General can be effectively substituted for the DPP. I understand the latter can happen on grounds of State security, although I cannot recall the exact phrase that applies. The Attorney General has that residual role in limited circumstances.
Regardless of whether we find it acceptable, however, one of the qualities of our public prosecution system is that, in the final analysis, an individual who is not a member of the Garda Síochána takes overall responsibility as to whether someone is tried on a criminal charge. I can imagine that a circumstance could arise where a difference of opinion might exist between the Minister of the day and anyone else. However, someone must decide these issues.
This is not entirely fanciful. For example, a case recently arose in respect of the Intoxicating Liquor Act and the holding of alcohol-free discos in bars. My Department had one view of the matter and the Director of Public Prosecutions had another. When it became clear, however, that the DPP proposed, based on his view of the law, to prosecute, I had no choice but to amend the law. As he is an independent officer, I could not stamp my foot and claim my opinion was better than his.
I would never expect that of the Minister.
I had to bow gracefully and state that if that was his view of the law, I was obliged to change it. This incident showed the Minister of the day respecting the independence of the DPP and placing the constitutional importance of a law officer above that of the Executive of the day when making decisions of this kind. If I attempted to provide for the contingencies mentioned by Deputy Jim O'Keeffe, I imagine I would be accused of trying to usurp the DPP's independent role.
How does the Minister feel about the point as it applies to relations between the DPP and the Garda Commissioner? From the statutory point of view, it appears the Garda Commissioner's role in respect of consultation will be sidelined because of this latest ministerial amendment.
This is a new provision and it falls into uncharted territory. Nothing in the 1974 Act provides for this scenario; everything is implied. Situations have occurred in which this issue came into play, whereby individual gardaí did A, B and C and the Director of Public Prosecutions had a different view of the case. It is desirable that the DPP's authority in this matter, as an independent officer of State, should be fully set out. As a matter of practice, the DPP will talk to the Garda Commissioner about these matters. If a statutory precondition of consultation existed, must one allow a particular amount of time for the commissioner to think about it? If an obligation to consult was included, it would not add greatly to the de facto situation. As the DPP has pointed out, it would, therefore, be clearly wrong to have a requirement of consultation in respect of specific individual directions. Not much is lost by removing that phrase because, de facto, the DPP and the Garda Commissioner have a close relationship in which they discuss responsibilities and policies regarding prosecutions. It is not necessary to provide for this.
Did the DPP suggest that the Minister make the amendment?
The DPP was consulted about this issue and about the entire operation of the Bill. After the debate in the Seanad, he wrote to me and stated that——
He was not impressed.
He realised he would have to consult the Garda Commissioner about individual cases on a literal construction of that subsection. Clearly, that was not what anyone intended.
I am interested in the idea of the DPP being in charge of prosecuting cases or of at least initiating them. I agree with this but it is strange that we appear to be reverting to a position where the Garda will be able to initiate prosecutions. In recent times, the practice has been that most, if not all, cases are referred to the DPP. My only criticism, which I also made when the DPP appeared before this committee, is that there is no timeframe for the referral of cases and one cannot predict when they will be processed. This criticism comes not only from the individuals involved but also on occasion from gardaí who have done the spadework, put a case together and are awaiting the DPP's decision.
Is a specific threshold of cases being discussed or is it desirable that we refer all cases? It should be one or the other rather than a mishmash of both. I understand that the legislation will allow the DPP to make a decision to take over a case at some stage. It would be better, however, if the Office of the DPP was obliged to make the decision before proceedings commence. This would mean that such proceedings might be conducted in a better fashion, that a different approach might be taken or that an individual garda might be dissuaded from initiating them in a quick or enthusiastic manner.
It would not be possible for the DPP's office to be consulted on everything, particularly in the case of summary offences. To consider the most ludicrous scenario, which I am sure the Deputy is not suggesting, we cannot have a situation whereby the Office of the Director of Public Prosecutions must be consulted on every speeding fine or out of date tax disc. The paperwork would become enormous. In summary cases of that kind, it is desirable that a garda who stops a person and finds that his or her tax disc is out of date should not have to trawl through the system seeking authority to prosecute. It is important that a garda be given the authority to prosecute a case of that nature on a general direction of the DPP or, in its absence, on the assumption that the garda has power to institute such a proceeding. As the level of complexity ascends, if someone is caught breaking into a house in Rathmines, for example, it is desirable that the person is capable of being brought before a District Court and charged with that offence on a charge sheet without someone from the DPP's office being woken up to authorise it.
The DPP is always in charge of a trial on indictment and the Garda Síochána is not authorised to prosecute an indictment. When it comes, therefore, to preparing a case to go forward to trial on indictment, the adequacy or otherwise of the evidence available to sustain a trial on indictment is a matter for decision by the State Solicitor's office and the DPP. The latter consider books of evidence and decide whether a case may proceed. These things are graduated. While it is easy to say that somebody caught breaking into a flat in Rathmines should be prosecuted by a garda, without he or she having to seek authorisation therefor, it is not so easy to say that this should also be the case in respect of sexual offences, homicides, conspiracy charges or offences against the State.
The DPP has specific functions with regard to the Special Criminal Court. These issues involve a graduated set of circumstances. This section is not designed to change anything dramatically but it does stipulate that when gardaí, as peace officers, institute prosecutions, they will comply with general or specific directions from the DPP and will prosecute in his name so as to make it clear to the person on the receiving end of a summons to the District Court that he or she will be the subject of a public, not a private, prosecution.
As the Minister is stitching in the dominance of the DPP regarding prosecutions, which is going into statute law, would it not be appropriate to balance up the accountability factor as well and have some means whereby the DPP will be accountable to the Oireachtas? If power is given on one side, it should be balanced out.
We should be able to deal with this issue by midnight.
I think the Chair has made a good point.
I was afraid the Deputy might say that.
It is an extension of a point I was going to make in light of the fact that we are giving the DPP the responsibility for deciding to institute and prosecute summary cases, in addition to indictment cases. There is an additional onus on the DPP in this regard. The ordinary citizen always feels considerable frustration regarding when, how and why the DPP decides to prosecute or not. It is the subject of considerable grief. One can read media reports, on an almost daily basis, about the grief caused by the DPP's decisions regarding whether to prosecute in cases such as hit-and-run incidents, dangerous driving and drunk driving.
Is it not time that some degree of accountability to both the public and the Oireachtas was applied to the DPP, particularly in light of the additional powers that are now being given to him? Is it not possible to build into the system a mechanism whereby a decision not to proceed with a case, which appears to the public — superficially at least — to be a high profile and serious in nature, can be explained by the DPP or one of his staff? Every case that is referred to the secret office of the DPP either proceeds to prosecution or does not do so, with no explanation of why or how the DPP made his decision. Should we not be able to put some mechanism in place that would provide the victims of the crime with relevant information to try to ease their suffering rather than leaving them ignorant of why the DPP made a particular decision?
I see the difficulty in that the DPP is independent in the discharge of his functions, a situation that should continue. At the same time, there must be accountability on the part of the DPP. I have always believed that there should be a security committee of the Oireachtas where security matters, sometimes of a confidential nature, could be discussed. In that context, issues of concern to the public could possibly be raised with the DPP — although the latter would not be answerable to the committee. The Minister will probably answer that if an independent figure is appointed, we must rely on his or her judgment in the exercise of his or her independence.
The DPP came before the committee at its invitation to discuss his position regarding criminal justice matters not too long ago.
That discussion was of a general nature.
With regard to the point made by Deputy Costello about people's frustration with the DPP, people are not only frustrated with decisions by the DPP to prosecute or not to prosecute cases but also with the lack of information about whether or not he will prosecute cases. Perhaps the Garda Síochána is informed but members of the public have no right to be informed unless they are lucky enough to find a garda who will inform them whether the case is being prosecuted. It is a pity that more attention was not paid to this topic by the committee. I did not understand that this was a major change in terms of the DPP when I was preparing for the debate on this section.
The Chair reminds me of someone driving along the freeway in California who has just dropped a cigarette butt into the middle of a forest and begun a fire. He appears to have started a forest fire here.
This is a complicated issue that is easy to oversimplify. I agree that it is undesirable that victims of crime should be kept in the dark regarding prosecutions. Victims should be informed as quickly as possible about whether a prosecution will take place. Delays in the entire criminal process are the subject of a review which is now being undertaken by the National Crime Council, which will be a very interesting report. The council is studying the reasons various steps in the prosecution process take so long, with a view to speeding the process up. My view may be slightly unfair but our system is somewhat slower than the similar system in the UK. People are prosecuted there sooner than is the case here. This may be due to many factors, including that the Garda Síochána has not had the civilian support enjoyed by English police forces. I refer here, for example, to senior executives who are not policemen or women but who work on cases to drive the process. There is a problem regarding delays and an information gap for victims.
On the issue of dropped prosecutions and taking rape cases, on which the media typically focuses, as an example, if the DPP were to give his reasons in any case, he would effectively be obliged to give them in every case. Such reasons might be that a man who claims to have been sexually assaulted by another man has questionable credibility in light of information available to the Garda or that he gave an entirely different account to a third party who wishes his or her identity to remain confidential. Some complainants, male or female, in sexual cases could be completely untrustworthy. The DPP may have cogent information from the Garda that a seemingly open and shut case suffers from one minor defect, namely, that the prosecuting gardaí believe the chief witness is lying. In these circumstances, if this came to light through a public system, it would compound the disaster from the person's point of view.
If the public is entitled to know that someone's complaint is not being proceeded with on the basis that his or her credibility is profoundly doubted or that evidence indicates he or she is lying, there will be many disadvantages. The individual may ask who told someone else that he or she was untrustworthy and it may become a dispute between the victim and the prosecutor. The DPP does not wish to be in a situation where his decision to prosecute or not to prosecute is the subject of judicial review. Chinks are opening in the UK concerning the reviewability of its DPP's decisions but, because it may not be a good idea, I am conservative regarding the desirability of having judicially reviewable decisions about whether to prosecute.
Is the benefit that seems obvious to those who know the reasons a prosecution does not proceed outweighed in practice by the evil of being required to publicly state all the relevant grounds for the decision? To the public, it may have seemed a valid prosecution. The unintended consequence of forcing the DPP to explain his decisions in any case is that it will become increasingly difficult to prosecute and more susceptible to public pressure. The process of independent prosecution could be affected, which is an unfashionable argument to make. The DPP should be accountable for general directions he gives under this Bill. When he says "no dangerous driving causing death cases are to be instituted without my say so", "all rape cases are to come to my office" or "rape cases need not be brought to my office from now on", these are areas in which he should be accountable.
To whom?
A challenge must be possible on these issues. The present incumbent does not have a problem with general accountability but I understand he does not wish to be in a position where he must explain in a public forum why he did not bring a prosecution in a particular case. Once he starts down this slippery slope he will never get off it and he will eventually be forced to unearth facts about prosecutions that would be unfair to people who consider themselves to be victims.
Is there a process in place for the type of accountability to which the Minister refers?
No. We have curiously exempted both the DPP and the Attorney General from accountability except concerning the general administration of their offices. The DPP has come before this committee previously and would not refuse to discuss one of his general policies. However, he could not be asked to address a committee about a specific case.
Would the DPP address the committee on the general operations and the scenarios raised by the Minister, such as the hypothetical decision not to deal with rape cases?
He would deal with them.
The DPP could carry out a report and discuss it with the Joint Committee on Justice, Equality, Defence and Women's Rights. A procedure does not exist whereby a victim can contact the DPP's office but it would not be difficult for the office to have a contact person or victim liaison officer dealing with the people involved in the cases the DPP is considering.
The Deputy may be right.
When the point is reached of the DPP deciding whether to institute a prosecution, the victims could be provided with the relevant information. The officer could tell these people there are certain confidential matters that cannot be supplied to them but there would at least be this personal contact throughout the processing of the case. This would not open the can of worms suggested by the Minister. There are two points to consider, namely——
We should finalise this when the Minister——
——the DPP's responsibility and accountability in respect of his office's general operation and the necessity that he deal in a humane fashion with people whose cases are before the courts.
To be fair to the present incumbent, he has often indicated his belief that there is a legitimate position in advance of a total wall of silence that he could adopt.
In the Bill——
This is the Garda Síochána Bill 2004 and not a prosecution of offences Bill. Now is not the time for me to open the expansive question of principle. Perhaps the committee should hold a hearing on the matter, in which I will gladly participate.
For stated reasons, the DPP cannot address the committee on this Bill. Obviously, he will not comment on individual cases but he may do so in respect of more general matters. Amendment agreed to.
I move Amendment No. 10:
In page 12, subsection (4), line 17, to delete "After consulting with the Garda Commissioner, the" and to substitute "The".
Amendment agreed to.
Amendments Nos. 11 to 13, inclusive, not moved.
Section 8, as amended, agreed to.
NEW SECTIONS
I move amendment No 14:
In page 13, before section 9, but in Chapter 1, to insert the following new section:
9.—Notwithstanding any other enactment, where a person has been convicted of the murder or manslaughter of a member of an Garda Síochána, he or she shall not be given preferential treatment while in the custody of the State.".
In an important Bill such as this, we should consider the protection of members of the Garda Síochána. Many members have voiced their upset at the killing of Detective Garda Jerry McCabe. A premeditated killing resulted in a manslaughter conviction. There was an understanding that the manslaughter conviction was agreed by the State because of the intimidation of witnesses. Certain evidence was not available to the court. Members of the force feel frustrated at the situation. This deepened with clear evidence of preferential treatment given to those killers currently in the custody of the State. This was compounded by a priority question I raised regarding their treatment in Castlerea. That made many members of the force uneasy. That is the reasoning behind the amendment.
The Garda Síochána is an unarmed force. The decision made at the foundation of the State regarding an unarmed force has proved to be correct. A number of members of the force have been gunned down. We should do everything in our power to protect members of the force. We tried to do so by providing for a particular length of time that would result from the murder of a member of the Garda Síochána. Unfortunately, that was circumvented in the case of Detective Garda Jerry McCabe by means of witness intimidation. Many people feel that the position has been compounded by the preferential treatment afforded to those killers. That is the basis for this amendment.
Deputy Jim O'Keeffe has stated the case fairly. There is concern on the part of members of the public and the Garda Síochána in respect of this issue. The killers of Detective Garda Jerry McCabe will serve their sentences. The area in which they are detained, the Grove, caters for 40 prisoners. The accommodation is in individual housing units. I do not believe that it is luxurious but I accept that some people see it as significantly better than the accommodation afforded to many other persons convicted of serious criminal offences.
That was the situation I found when I became Minister for Justice, Equality and Law Reform. I cannot reverse it unless there is a reason to do so. If a reason did present itself, I would not hesitate to reverse the position. I cannot act arbitrarily or capriciously and decide to reverse the arrangement for no good reason. I must have a stateable reason. I do not want to create a legal case against myself for acting in an unlawful manner. The governor has made it clear to the prisoners in question that I, as Minister, will not hesitate to return them to Portlaoise if any future behaviour on their part warrants it.
The Deputy will be aware that the prisoners in question have been the subject of photographic portrayal in the company of Members of Dáil Éireann. Pictures were published in An Phoblacht and subsequently in other newspapers. I regard this as a breach of prison rules and deeply offensive to their victims. I have indicated that if anything like this happens again during the balance of their sentences, I will not hesitate to ensure they are put in a place where it cannot happen.
Although I do not want to be specious, the Deputy will understand that I cannot accept the way he has furnished the amendment. Someone convicted of the manslaughter of a garda in wholly different circumstances might be prevented from going to the training unit, Loughan House or Shelton Abbey for the final few years of a long sentence. That might or not be appropriate.
Let us consider the example of a person pushing someone who trips, bangs his or her head on the ground and dies. That is a case of manslaughter, resulting from a relatively innocuous physical assault that has a catastrophic consequence for the victim. I cannot accept that someone in those circumstances could never be given any remedial status or any entitlement for a transfer to the training unit in Mountjoy.
People who were serving mandatory sentences for the murder of gardaí — 40 years imprisonment without remission — were released under the terms of the British-Irish Agreement. That is sometimes forgotten in this debate. The killers of Detective Garda Jerry McCabe, the people who nearly killed Ben O'Sullivan, will serve their full sentences. They will do so in circumstances where they will obey the prison rules. If there are any departures from prison rules, I will not hesitate to return them to Portlaoise if there are grounds to do so.
My presentation of this amendment in a low-key manner does not indicate a lack of concern for the protection of members of the force. I appreciate the Minister's full response but I wish to make another point, not on the killers of Garda McCabe, but on the incident in Cork this week where firearms were produced when a family was held hostage. It is conceivable that those firearms could have been used when the gardaí arrived, but fortunately in this case the principal hostage was able to alert his brother-in-law, Sergeant McPolin, who did his duty unarmed and heroically.
Could we have an issue in the future where "redundant republicans" are involved and claim cover because of their past or present membership of the IRA or associated organisation and seek preferential treatment on conviction? I am calmly and clearly putting down a marker that I want to see members of the force protected by legislation from the heinous activities of such people in so far as possible, particularly as most gardaí are unarmed.
Is it normal procedure that prisoners convicted of political offences initially serve their sentences in Portlaoise prison and after a considerable time are moved to Castlerea prior to release? That seems to be what the State has done over a considerable period of time with such prisoners. The Minister spoke about other prisoners convicted of the manslaughter or murder of gardaí. Is it true that a number of prisoners are still in Portlaoise serving a mandatory 40 year sentence for the murder of gardaí at Ballaghadereen? Mr. Peter Pringle was released in that case, but his co-accused are still in Portlaoise.
I am aware of at least one or possibly two prisoners serving sentences of that length and the Deputy is correct about them. To Deputy O'Keeffe I say that I am not aware of the exact reason for the current situation but it will not repeated. Nobody who endangers the life of a member of the Garda Síochána should ever think there is a question of being treated in the same way.
Amendment, by leave, withdrawn.
I move amendment No. 15:
In page 13, before section 9, but in Chapter 2, to insert the following new section:
9.—The Commissioner and members of the Garda Síochána shall be accountable to a Garda Síochána Board, which shall consist of a chairperson and members appointed in a manner determined by regulations made by the Minister, and the Board shall have the function of giving general direction and control to the Commissioner and members of the Garda Síochána and shall perform such other functions as are specified in regulations made by the Minister.
It is a small matter.
It might be a small matter but it is an important issue and one we have previously discussed. The amendment provides that the Commissioner and members of the Garda Síochána are accountable to the Garda Síochána board and gives details of the membership of that board.
This returns to the question of whether it is desirable to have an authority between the Minister and the Garda Commissioner. The Garda Commissioner is one of the few people who operates on his or her own. This Bill even establishes an ombudsman commission because the Minister believes one person alone cannot undertake all the duties involved and that a greater balance would be obtained with three persons in the ombudsman commission.
However, the Garda Commissioner must make all decisions and will be responsible for all of the work done with little accountability to civilians. This should tie in with the idea of community policing where a partnership role is given to the community, but this Bill does not allow for civilian input on the control of the Garda Síochána, nor provides for a Garda authority in which civilians have a role. The Garda Síochána operates in complete isolation with reference only to the Minister, who is the only point of contact for a civilian.
The Minister argues against creating quangos, yet the Tánaiste and Minister for Health and Children and leader of his party recently established the Health Service Executive to replace the health boards, where she does not have one person running the show. Another example of such bodies that provide plans, strategies and annual budgets and deal with promotions is the VEC.
In the next section of this Bill which covers promotions, the Government takes upon itself responsibility for the top promotions while the Garda Commissioner is responsible for lower promotions. There is no intervening structure that would be seen as a neutral broker or independent body in this matter. The hierarchical system currently in place does not allow for input from outside persons or bodies, other than the Minister, into the governance, accountability or monitoring of the gardaí, the planning or use of funds to be allocated to the gardaí or the promotions to be undertaken. Under this Bill that hierarchical system will be maintained.
The Minister chooses not to present this issue of democracy to the House, but that issue must be examined. If we revamp the gardaí to make them more responsible and responsive to the needs of the people, then the people should have some representation in the mechanisms under which the Garda operates. The Bill provides that at local level through community policing where a partnership will be established for the delivery of the service but nothing will be provided at national level for the strategic management of the service. That is a considerable flaw in this Bill.
I await the Minister's reply before commenting.
This is not the first time this subject has arisen during this debate and I concede Deputy Costello the fact that what he argued during this debate is consistent with what he stated on Second Stage.
I have dealt with this issue on a number of occasions, both in Seanad Éireann and Dáil Éireann, as has Minister of State, Deputy Tim O'Malley. I have also dealt with it before this committee. I strongly believe that democratic accountability for a national police force should be exercised through ministerial responsibility. Policing is an Executive function of the State that should be under the control of the Executive and accountable to a democratic parliament. The interposition of an independent board between the Minister and the Garda Síochána would have a negative effect on democratic accountability. It is almost impossible to consider that a national security force could be answerable to an independent body and not to the Executive of the day.
It is not a matter of the Minister disenfranchising the Executive in the interests of the Legislature. Under the Constitution, as a Minister, I am accountable to Dáil Éireann for the performance of the Garda Síochána. I am held to account regularly and in the strongest possible manner for how the Garda Síochána performs its duties. On a daily basis there are demands in newspapers that I do A, B and C; that I provide new funds, equipment, manpower; that I carry out various tasks. It would be so easy, in the context of an independent board, to say: I have given the board €1.1 billion; it must run the policing service; I cannot take another €100 million from hospitals and give it to the board; it is the business of the board; if people are not happy, they should raise matters with the board and so on. It would be so easy to get to that point.
I am not doing this in my own interest, I am doing it in the interest of the Opposition Deputies. If I was an Opposition Deputy, I would feel that I was in a far stronger position to exercise some influence over how the Garda Síochána functions than if a board of 12 men and women, pillars of society, was running the police force. Deputies are in a better position to exercise influence and to exact accountability than they would be if there was an independent body in place. If the Opposition Deputies were in my position, with executive responsibility for this issue, they would view the matter as I do.
There are major differences between the Republic of Ireland and Northern Ireland in the context of the policing function. It is almost invariably the case, across the world, that where there is a national police force, it is accountable to the democratic organs of the State at ministerial level. That applies in Canada and most of Europe. It is only regional constabularies that are accountable to boards or local authorities.
I am not sure if Deputy Costello would find the notion of zero tolerance attractive, but it has been lauded in New York. It has been argued that it has brought about a wonderful policing revolution in that city. The Mayor of New York is directly responsible for policing through his Commissioner, whom he hires or fires. The Mayor does not tell the State legislature or the city council in New York to discuss policing problems with a board. Therefore, even in municipal police forces, such as the NYPD, a political person is responsible, namely the Mayor of the city. In many states in the US one has to be elected by the electorate to become a police commissioner.
That is a good idea.
Perhaps it is a good idea. Deputy Costello may wish to have elections for the judiciary, police chiefs, fire chiefs and so on. However, I would caution him to look around the corner before requesting such a system, because his request might be granted.
I thought when the Minister considered the situation of those of us on this side of the House in the context of the future, he anticipated the results of the next general election and did not want to tie our hands in office.
This is an issue that can be argued either way. If one examines the situation abroad, some jurisdictions have interposed boards between the Minister and the police force, while others have not. Deputy Costello can make as good a case for an interposed board as the Minister can make against the option.
The main concern is that the force is not only responsible for general policing but also for national security. There are issues in that regard that would not arise in the UK, where MI5 and MI6 are responsible for national security and are not answerable to local boards but directly to Government. I am not pressing the issue either way because the arguments on both sides are persuasive.
There is a need for greater transparency in the appointment of the Garda Commissioner and Assistant Commissioner. The appointments should be merit-based and realised through a public appointments system. The holders of the posts should not simply be political appointees, selected by the Minister. There must be an independent evaluation of the applicants, based on specific, publicised criteria. The process should be similar to the manner in which other senior public positions are filled. Senior managerial positions should not be in the gift of a Minister or the Cabinet.
I have suggested changes to sections of the Bill that would introduce more transparency into the appointment process and make the Commissioners more accountable. The appointment of the Garda Commissioner and Assistant Commissioner should be ratified by the board of the Garda Síochána — if we have such a board — and should not be the sole decision of the Minister of the day. This board should have some role in selecting the person who gives effect to its directions. The board should be able to work with the appointee and be of similar opinion to him or her regarding the future of policing over a five or ten year period.
This issue certainly has been argued in the past. The Minister's main argument is that all sections of the Garda are unified under the jurisdiction of the Commissioner and that national security may be a problem. I do not see why that should pose a problem because the function of the board would not be to pry into the activities of the special branch. The Garda Commissioner and the Minister are responsible for those matters. Relevant areas include strategic management, general operational capacity and funding allocations for the Garda. We should not rule out structures that provide the benefits of democratic civilian input and the removal of politics from promotions, about which public disquiet exists. It was stated in the Morris tribunal that certain people were promoted without being qualified for their new posts. Nobody checks on the Commissioner's decisions on promotions at lower ranks or the Government's decisions on rank of superintendent and above. The Bill does not address this matter, in which neither transparency nor accountability exists. Disliking an idea is insufficient reason to rule it out.
The Bill leaves promotion in the respective domains of the Commissioner and the Government. There are good reasons to have a body with civilian input. In addition to it being democratic, it would tie in with the delivery of services on the ground. If services are to be delivered on the ground by means of democratic process, in which gardaí are connected to the community and the local authority, why should this not also be done at a higher level, where real power rests and accountability is required?
I have already commented on the question of an independent board but Deputy Costello is now raising the issue of promotions inside the Garda Síochána. Decisions on the appointment of a Garda Commissioner or deputy commissioners fall to the Government on a judgment basis. I do not believe they should be surrendered to a third party.
I am not suggesting that. They would conduct the interviews and a number of names would be forwarded to the Government. There would be a process.
The Government is free, under this legislation, to appoint a civilian Commissioner if it so chooses. The Government is not bound to the recent practice of selecting gardaí, which I favour. The appointment of the person in charge of the Garda Síochána and his or her deputies are in the hands of Government.
Transparency.
The Deputy may raise the issue of transparency but the Government must make a judgment about the personal capacity of the people with whom it deals. This difficult decision must be made. I made it clear in the Seanad that I will make regulations to provide for an independent element in all promotions. It will not be an opaque process without the involvement of outsiders. Superintendents and inspectors, who are now appointed by the Government, are believed by the media to be political appointments but this is not the case. People are appointed in strict order of merit arising from a board system which does not receive an input from the Government. They hold their positions from the Government for the same reason as Army officers hold their positions from the President. By this means they are given authority within the Garda Síochána. They are not the creatures of the Commissioner but are given status from the Government by holding a warrant of appointment to superintendent or inspector. The Government does not interfere politically by selecting one person over another.
I want to make it clear that, despite belief to the contrary, on no occasion since I became Minister has there been any interference with an order of recommendation given to the Government. I will add that on no occasion have I sought to influence the outcome of any promotional decision within the Garda Síochána. I can also say this for my predecessor, based on knowledge I have gleaned by holding my office. Many people have sidled up to say that such and such a person is very good. On no occasion have I communicated with any member of the Garda Síochána——
Not everybody is as angelic as the Minister.
——who had a part in the promotion process.
Wherein lies the independent element at present? Does a process involving members of the force exist?
An independent element exists. Regulations provide for outsiders to sit on the board deciding on senior appointments in the Garda.
We have moved far away from discussion of the amendment. Will Deputy Costello press the amendment?
Yes, I will.
I draw the committee's attention to section 114(2), which states "Regulations under subsection (1)(i) shall include provision for the establishment of promotion boards comprising 3 members, one of whom (but not the chairperson) shall be a member of the Garda Síochána.” It may be necessary for me to table amendments on Report Stage to provide a procedure for the dismissal of Commissioner, chief superintendent and superintendent. The Bill does not at present cover this matter adequately.
Amendment put and declared lost.
Section 9 agreed to.
SECTION 10.
I move amendment No. 16:
In page 13, between lines 16 and 17, to insert the following subsection:
"(2) The Government shall appoint an Assistant Commissioner with special responsibility for community policing, who shall have a budget allocation and specially appointed community policing officers.".
My colleague, Deputy Gerard Murphy, who unfortunately is not here, was particularly interested in this matter because he was involved with the committee's examination of community policing. Community policing is not a high priority within the force. For many of those involved, community-policing posting is viewed as leading to a slow track to promotion, rather than a fast track. The committee's general view on the issue was that we would like community policing to be rated more highly within the force. My colleague, Deputy Costello, went far more deeply than I did into the thinking behind the proposal to have an assistant commissioner with special responsibility for community policing, and he will have his views on the issue. Generally, we should upgrade the whole position of community policing within the force. The amendment is an attempt to achieve that.
I fully support the amendment, and I think that you, Chairman——
Let us have less of the eloquence.
I was merely trying to draw further support for the amendment. Recommendation 16 of the joint committee's report on community policing is "That an Assistant Garda Commissioner should be appointed with lead managerial responsibility for community policing". I think the Chairman had a hand in the phrasing of that. The proposal is an excellent idea for community policing, and will underline the importance placed on this new departure. The committee was unanimous on the matter, and felt it extremely desirable that the due status of community policing be underpinned.
I thank the committee for the report it furnished to the public and to me. I have been reading my way through it and I noticed that recommendation. Deputies will appreciate that the Bill is entirely silent as to how portfolios of responsibility could be handed out among assistant commissioners, both regional commissioners and those with responsibility for special functions within the Garda Síochána. The silence of the Bill in that respect does not suggest that such a role should not be given to an assistant commissioner. I emphasise that the strategic plan the commissioner must come up with and the power of the Minister of the day to approve that plan and give directions are capable of achieving that end.
I share Deputy Jim O'Keeffe's view about the need to ensure that, in the general functioning of the Garda Síochána, fundamental front-line duties — although I do not like to use the term "front-line", which suggests a combative role — or fundamental policing duties such as policing communities are not regarded as residual roles, but as core functions of the force.
I sympathise with the proposals made, and I intend to address the need the committee highlighted for community policing to be centrally located at a senior level within the Garda Síochána. That responsibility, like other specialist responsibilities for assistant commissioners, should come under the other processes set out in the Bill. I am sympathetic to the joint committee's argument, but the legislation is well capable of achieving the result without specifying particular roles for assistant commissioners. A deputy commissioner might be given the community policing role, for instance. I cannot exclude that possibility. I agree with the thrust of the amendment, but we should not start to allocate responsibilities on a rigid basis. Community policing could be divided geographically. I do not want to introduce new rigidity into the system or claim that the appointment of an assistant commissioner is a solution to the problems that exist.
I am sure the joint committee would like to continue to engage with the Minister and the commissioner on this matter, particularly in light of the other sections of the Bill that provide for potential participation in policing committees, even by members of the joint committee or public representatives in general.
I genuinely value the committee's interest in the issue. I will make myself available to discuss this matter, and I am sure I also speak for the commissioner on that. I would ask for an opportunity to absorb the committee's report, which we need to think through carefully.
We can return to the issue. I very much appreciate the Minister's comments, which would appear to indicate that there is a common view on the importance of community policing. It is only a question of how best to reflect that in practice.
Amendment, by leave, withdrawn.
Section 10 agreed to.
SECTION 11.
Question proposed: "That section 11 stand part of the Bill."
Section 11 deals with the removal of the commissioner or deputy commissioner. Is the Minister providing for the removal of assistant commissioners on similar terms?
I want to come back to that. I am not sure I would wish to provide for that on exactly the same terms. I am conscious that I have not adequately dealt with that in the Bill.
There is a lacuna there at the moment in that we have provided for the appointment of a commissioner and deputy and assistant commissioners, but only for the removal of the commissioner and deputy commissioners.
I could claim that the power to make regulations would enable me to deal with assistant commissioners as well, but I think it might be necessary to give that a firmer statutory basis.
Section 11 is silent on the assistant Garda commissioner. That is the point. The Minister will come back to that.
The main point is that the assistant Garda commissioner is covered by disciplinary regulations, as are all members of the Garda Síochána. Somebody might have to leave for non-disciplinary reasons. The real issue I have to consider is whether the individuals who fit into the category of high management should have complete security of tenure.
I have a question about section 11(1)(a), under which individuals can be removed from office if they have "failed to perform the functions of the office with due diligence and effectiveness or, in the case of the Garda Commissioner, has failed to have regard to any of the matters specified in section 23(2)". Those matters are "any relevant policies of the Minister or the Government". That seems very broad. Could that be tidied up in some way to make the provision apply more specifically to matters pertaining to the Garda Síochána? "Relevant" has a broad meaning.
I am sure the wording is intended. Can the Minister confirm that is the case?
That is intended. It is a broad chain-of-command provision. The Government and the Minister of the day have to be in a position to lay down policy. It is not the function of the Garda Commissioner to pursue his own polices. In that sense he is not independent — that may come as a shock to some but that is the position — no more than I am independent of Government. I cannot suddenly announce a policy. My colleagues can tell me that I am out of line.
The Minister for Transport, Deputy Cullen, was out of line.
If I am out of line I can be removed summarily, unlike the commissioner.
Is it a question of an objective view or a subjective view as to what is relevant? It might be relevant to the Minister to ensure that his party increased its representation in the Dáil.
In the last analysis, if that was the basis on which I acted a court would intervene to stop me.
In regard to objective and subjective matters for removal, section (1)(c) states “the person's removal from office would, in the Government's opinion, be in the best interests of the Garda Síochána”.
The Government's opinion has to be a bona fides opinion. Once it is a bona fides opinion that is it.
What does bona fides mean?
As a matter of law if it was not the Government's opinion it could not rely on that subsection. Once it becomes the Government's opinion that is the position. In the last analysis there are circumstances that might not be comprehended in paragraphs (a ) and (b) which would form a good reason for removing a commissioner. I stress — this is certainly the case — the relationship between a well-functioning Minister and a well-functioning commissioner is one of mutual respect and these kind of issues simply do not arise. There are not blunt confrontational situations.
It is just the use of the word "opinion". It does not say "expressed" or "stated" opinion but just the Government's opinion.
The earlier part of the section reads, "that only for stated reasons, including" the person's removal from office would, in the Government's opinion, be in the best interests of the Garda Síochána.
It is better than being in the Minister's opinion.
They have done a good job.
It is much better than the old formulation that one holds office at the pleasure of the Government.
Displeasure and pleasure are not the same.
Some Government would have to decide at a meeting to form an opinion
Would such a decision be justiciable?
I do not wish to compromise a Government of the future but I know that in the case of Commissioner Garvey a removal decision was justiciable in that case. Natural justice certainly applied.
Proper procedure and natural justice and all those things are implied.
In section 12 there is an elaborate procedure.
That is after the Government has made the decision.
No. Before a person's removal it has to notify the person of its intention to do so and give the reasons to allow the person make representations. It is fairly justiciable if there was a departure from all of that.
Is there any public statement? The Oireachtas does not come in until the end of the process. Section 12(6) reads:
As soon as practicable after a person is removed from office under section 11,the Minister shall cause a statement of the reasons for the removal to be laid before each House of the Oireachtas.
Should not the initial stated opinion be put on the floor of the House before the removal takes place?
The Deputy should consider the following. Suppose the Government was to engage in a section 12 procedure and half way through it decided the views it held were mistaken. If it had already signalled to the Oireachtas that it was half way down the road of removing the commissioner, public confidence in that person would be badly affected. It is better that the obligation to go public comes after the decision rather than before it. How could a commissioner function if a Government had effectively laid charges against him in public and then changed its mind? It would seriously damage a senior person in the Garda Síochána if the process was public at all stages. If I was a Garda Commissioner I would prefer not to have a situation where, before I got my opportunity to reply, the Government had to go public and say it was considering removing me.
The stated reasons will be given to the person individually, following which an inquiry may be established. In all that time it is likely the matter will come into the public domain but the Oireachtas will not hear about it until the process is completed. As usual the last to hear about it is the Oireachtas.
The commissioner will obviously have heard of allegations or of a move against him in whatever situation he may be.
Question put and agreed to.
SECTION 12.
Question proposed: "That section 12 stand part of the Bill."
I have a few small suggestions to make. Section 12(3) refers to a person appointed under this section. I suggest that "persons" or "a body" may be appointed under the section. I suggest an amendment to the subsection as it may concern more than one individual. I suggest also that in section 12(1), before considering the removal from office of the commissioner or deputy commissioner, the Government notify the board of the Garda Síochána and give it the opportunity to submit an opinion on the proposed removal.
Before moving on, it may be necessary to amend subsection (4) on Report Stage to provide that the High Court can compel a person to turn up and participate. It is a punitive provision as it stands. The tribunals of inquiry law was found to be inadequate and we strengthened it to provide that the High Court could actually direct somebody to comply with an order of the tribunal. We may have to include a provision to the same effect there.
Question put and agreed to.
It is suggested we adjourn consideration of this Bill until 2.30 p.m. on Tuesday, 10 May 2005 and that we sit with the objective of finishing our consideration of the Bill. We will leave it open-ended. Is that agreed?
The road to hell is paved with good intentions.
The select committee is adjourned until 9.30 a.m. on Thursday, 5 May when we shall resume our consideration of Committee Stage of the Disability Bill 2004.
Progress reported; Committee to sit again.
The select committee adjourned at 7 p.m. until 9.30 a.m. on Thursday, 5 May 2005.