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SELECT COMMITTEE ON JUSTICE, EQUALITY, DEFENCE AND WOMEN’S RIGHTS debate -
Tuesday, 17 May 2005

Garda Síochána Bill 2004 [Seanad ]: Committee Stage (Resumed).

I welcome the Minister for Justice, Equality and Law Reform, Deputy McDowell, and his officials to the meeting. We adjourned, having agreed section 31, as amended, and will now turn to section 32, amendment No. 43. Amendment No. 43 has been discussed with amendment No. 35, which Deputy O'Keeffe withdrew. Will he withdraw this amendment?

It would be appropriate to open up the debate on this issue.

The discussion could be opened up when we come to deal with amendment No. 45 in Deputy O'Keeffe's name.

SECTION 32.

I move amendment No. 43:

In page 25, subsection (1), line 2, after "committee" to insert "and local community policing committees".

We are talking about the joint policing committees and essentially the purpose of this amendment, which is somewhat separate from the earlier debate, is to ensure the local community is involved to the greatest extent possible.

It is exactly the same as amendment No. 35.

In amendment No. 35, I was seeking the establishment of a local community policing committee, but in amendment No. 43, I am seeking to have the local community involved in the joint policing committee.

My basic point is that it is better when members of the local community have a greater involvement in the anti-crime activities in their area. I want to see the community fully and effectively involved to the greatest possible extent. The Garda Síochána will benefit from increased local knowledge and intelligence and in particular from the community working with it to try to ensure the best policing effort possible.

Deputy Costello is the expert in the area of community policing.

It is useful to discuss this amendment further because what is missing from the section is the structure and guidelines for establishing community policing fora. In section 31, we have fairly elaborate procedures for the membership of the joint policing committees. In section 31, there is a reference to the committee establishing local policing fora with the consent of the Garda Commissioner. Deputy O'Keeffe is seeking that a local authority and the Garda Commissioner shall arrange for the establishment of a joint policing committee and local community policing committees in accordance with the guidelines issued under section 31. I am not sure the guidelines issued under section 31 are all necessary but, there should be some provision for guidelines for local community policing committees. We may set up a structure for the joint policing committees, which is good, and then leave the community policing fora to their own devices, which effectively is what the legislation does because it is silent on the structures, membership and who will hold the chair of the new community policing fora, as well on how the fora will operate and report and so on.

The Minister has done a good job on the details for the joint community policing committees, but the same level of attention has not been given to the community policing fora. The community policing fora may be the engine that runs this whole operation. If there are no guidelines as to how the committees will operate, they will take a life of their own and will operate differently in each area giving rise to much confusion.

It is good that an amendment has been tabled that shows the need that will exist when the local community policing committees will be established. In our submission, we proposed that the membership of the local policing fora could include public representatives, senior Garda management, senior estate management personnel from the local authority and representatives from the community and voluntary sector. There is a need for guidelines outlining how the community policing fora will operate.

We have already discussed this amendment, not only with amendment No. 35 but with amendments Nos. 36 and 37 when discussing section 31.

In a sense we are on the section.

No, we have effectively gone beyond it.

We have not finished section 32.

We have not finished section 32, but we have already discussed the points made by the Deputy in section 31. We have already discussed amendments Nos. 35 to 37, inclusive, which specifically relate to these matters.

We contemplated setting out a pattern for local policing fora and we came to the view that the more detailed and prescriptive the legislation became, the more difficult it would be to agree on a consensus of a one size suits all pattern, right across the country. Therefore, we left it to the local policing committee to make the judgments to which Deputy Costello refers and I am not suggesting that what is in the joint committee's report or what Deputy Costello says lacks merit. If for instance, I were to say local residents' associations should or should not be on the local policing forum, then the question would be what is a local residents' association because I know from my own constituency they can constitute three people or 333 people, depending on what happens. If we establish a right for local residents' associations to be on it, I can imagine one particular political movement in this country deciding it will then set up the residents' associations to match. Those were the types of worries we had.

Deputy Costello referred to local estate management and I take it he made the point in the context of an urban area with social housing. We could be talking in this context also about a rural area with only a Community Watch scheme. Therefore, local estate management might be the landlord from the Big House. I make this point to illustrate how difficult it is to draw down a model which applies in rural Mayo as well as south central inner city Dublin or north central inner city Dublin for that matter. We genuinely considered whether we should go into greater detail on all of this, but we decided the better option was to leave it up to each local policing committee to do its own thing in its own place and to establish fora which are appropriate to the area they are attempting to police. Let me give an example. If there were to be a forum in Mount Merrion, its structure necessarily would be different from a forum in County Mayo. It would have to be a different structure and there is no point in talking about institutions in one which do not exist in the other and saying they are there as of right. In some places in rural Ireland, for instance, County Mayo, there are no residents' associations. There are community groups such as Community Watch, which get together and could be just as representative as a local roads action committee.

We must be aware of the fact that these fora will mutate as one moves from one area to another across Ireland, which is why we left it flexible. It is not as if we were lazy and walked away from the issue. We came to the bona fide conclusion that we could not think of a formula which would cover the issue correctly and not lead to abuses, that people would decide on the criteria to establish an association, action group or drugs campaign to match in order to get a representative on the group. That was our one worry in that regard.

I will not press the amendment. I will bear in mind what the Minister had to say and appreciate the difficulties as long as he is, like I am, seeking to involve the community to the greatest extent to which it can genuinely be involved. I also appreciate the danger.

If I was to mention business interests, for instance, it would mean the local hardware shop in the middle of nowhere in rural Ireland, whereas it might mean all of the business interests in an inner city area. It could have very different meanings.

It could mean the local money-laundering operation.

Amendment, by leave, withdrawn.
Amendment No. 44 not moved.

I move amendment No. 45:

In page 25, subsection (2), between lines 14 and 15, to insert the following:

"(b) monitor the performance and effectiveness of the Gardaí in carrying out its functions in the administrative area,”.

This is a new point for discussion. Just as community groups are not the same everywhere or not having one formula to suit all situations, policing can differ from one community to another. For one reason or another, it can arise that local police force members operate closely and effectively with a local community which may not be so in other areas.

It struck me that it would be useful to bring forward, even for discussion purposes at this stage, a role for the joint policing committees, a little beyond keeping under review the levels and patterns of crime and the factors underlying and contributing to the levels of crime, to include an entitlement to keep under review the performance and effectiveness of the Garda in carrying out its functions in the administrative area. I did so on the basis that genuine constructive proposals might emerge from this particular aspect of any such review. It is one worth thinking about in the context of discussion of the functions of a joint policing committee. On that basis, I bring forward the proposal for consideration.

I draw the Deputy's attention to section 32(2)(b). One of the functions of the joint policing committee is to “advise the local authority concerned and the Garda Síochána on how they might best exercise their functions having regard to the need to do everything feasible to improve the safety and quality of life and to prevent crime, disorder and anti-social behaviour within the area”. That is a carefully balanced formula. The reason it was put in those terms — the Deputy will appreciate we put much care into this — was to create a set of functions to create a genuine sense of partnership between the Garda Síochána and the local authority members in question and the members of the committee rather than one in which one group was monitored by the other.

I have stated and will not repeat at length that joint policing committees must be partnerships. If gardaí go onto them in defensive mode saying this is like appearing before the Committee of Public Accounts where they take a hammering while people wag fingers at them, it will sour the relationship from the very beginning. I want to achieve a balance in which gardaí and the other representatives on the committees will act as a team. Section 32(2)(b) puts Deputy O’Keeffe’s amendment in a more polite, balanced and inclusive way in which there will be a partnership spirit.

The problem with opting for the Deputy's amendment is that it would mean that monitoring of the Garda Síochána, in particular, would be a function of the committee in the sense that monitoring the activities of the local authority would not be an issue. The process is not just a one-way street. It must be remembered that the Garda will have an important role in highlighting deficiencies in town planning and environmental factors — to mention two aspects relevant to policing. Why should the body not look at the performance and effectiveness of the other players? Gardaí should be able to state at meetings that the local authority built the estate concerned but there are no pitches for the children on which to play, no recreational and indoor facilities of any kind. They might want to be in a position to state to the local authority that its open spaces and communal stairways are completely unsupervised and unlit, that that is its problem as manager of the estate.

I want to achieve a balanced role. Whereas I appreciate what the Deputy stated — his wording looks punchier if one takes it from the point of view of the local authority member that one of his or her functions is to monitor the Garda Síochána — what I have been trying to stress is that the committees will succeed only if both sides sit together in partnership rather than pointing fingers at each other. I hope it will not be an adversarial relationship. If we were to insert a wording in respect of one side monitoring the other, the Garda and the GRA would call a halt and ask that their members be able to examine the entrails of Dublin City Council and question whether it is managing its estate properly.

There would be nothing wrong with that either.

The Minister has pointed out what could be the best way forward, to provide for monitoring, not just of the Garda Síochána but also of the local authority. That would be one way of dealing with the matter.

In the broader sense I take the Minister's point on the need for partnership. I agree with that central thrust, that what is wanted is a partnership between the Garda Síochána and the local community.

Resisting the temptation to amend my amendment to include the local authority under the monitoring cosh, what is needed is a halfway house between the approach which involves advising and the cosh-like approach, perhaps as described by the Minister, on the issue of monitoring which might introduce an adversarial aspect. I want to see engagement between the various bodies and take the point that the word "monitoring" might be too strong.

To reassure the Deputy, if, for instance, in a local authority area it were to emerge that community policing had evaporated completely, there is nothing in section 32(2)(b) which would prevent a member of the local authority or anybody else on the committee from raising the issue and making the point forcefully that the community concerned was not receiving a community policing service. I wanted to put it in a balanced way. We are on a two-way street; it is not one way. It is not a pulpit for local authority members to lecture gardaí on the deficiencies of the Garda Síochána only. They can raise deficiencies if they want but they must remember that in those circumstances gardaí have just as much a right to point to other underlying social issues which are the responsibility of the local authority.

Section 33 introduces into law for the first time a general duty and obligation on local authorities to carry out their functions in a manner that has regard to the need to take such steps as are necessary to reduce crime, disorder and anti-social behaviour within their areas of responsibility. The design of estates, decisions on whether to provide wardens in trouble spots, traffic decisions and decisions to block off roads are among the many issues on which local authorities make decisions. They also make decisions on the closing or opening of swimming pools, access to football pitches in parks and so on. These are issues in respect of which the local authority should take into account the issues of crime and offending. Section 33 which we have not yet reached brings that duty into the equation for the first time and places it on the agenda for local authorities.

I disagree with Deputy O'Keeffe and agree with the Minister. The reason is that I do not believe this is the place to insert a provision for monitoring the Garda Síochána. The thrust of what is being done is to create a partnership. It will not be a partnership if one section is given the function of monitoring the others. It would not work. It would automatically put the Garda on the defensive and cause suspicion all around. It could end up as a talking shop or a slagging match with people asking why the Garda did not do this or that.

I understand this duty is built into the structure in the Northern Ireland joint policing partnerships. However, I disagree with it as it is inappropriate. Of their nature, joint policing committees with tripartite involvement involve built in monitoring of everybody in a sense because the Garda Síochána must fulfil its functions, local authorities must fulfil theirs, while the local community must make its contribution which happens anyway.

The problem is that I do not see a monitoring mechanism within the community policing fora or the joint policing committees. It is difficult to see where there is any formal independent monitoring of the activities of the Garda Síochána which a Garda authority or board would have provided. I am not sure the inspectorate will provide anything on that level. I am not sure the Commissioner, in his new role, will provide it either. Independent monitoring of the activities of the Garda is still missing but I do not believe this is the place for it. This is a partnership. We need to build the relationship with the Garda. That will be the whole basis on which this structure will operate effectively if it is a real partnership.

On Deputy Costello's last point, I notice that members of the Fine Gael Party are tabling parliamentary questions with a view to eliciting the crime statistics for their areas. I do not resent this. It is a good idea for local communities to have an idea of the crime level in their areas rather than the aggregated national figures. It is important to break the figures down by region. I understand members of this committee will be travelling to America in the near future.

Yes, to examine the operation of the criminal justice system, joint policing committees and other matters.

I am rushing to get there before committee members. I believe I will beat them to it.

The idea of responsibility devolving down in a police force is one I am very anxious to develop but not to a stage where people will be constantly under massive pressure that brings them to breaking point. For instance, in a case in Cork before the public order legislation came through, the Garda Síochána adopted a partnership approach with the entertainment industry, the local authority and the local Judiciary regarding licensing policy and achieved a significant breakthrough in terms of public order offences. Such incidents should be made known in order that those who do well get a clap on the back and those who are not doing so well are reminded of this.

I am equally concerned not to create a situation similar to that which results from publishing school league tables where a superintendent in a problem area is kicked around by the media while somebody in a comparative backwater in terms of crime — there are few enough of them — can just motor along. If we disaggregate crime figures and bring responsibility home on a regional level, we must be fair and accept that people are entitled to point out that they have fewer resources, that they have a much higher drugs problem or much higher marginalisation in their community.

I was half convinced by the Minister on this issue. However, when Deputy Costello expressed his point of view, I was even more convinced that perhaps this was not the best amendment I could have tabled. Certainly, the manner in which it is tabled gives too much of an edge to the situation and could give rise to the adversarial approach that none of us wants. There is cross-party agreement that what we need is a partnership approach. The spirit is willing but the words are weak. I will possibly table an amended amendment on Report Stage, taking into account the debate we have had.

Amendment, by leave, withdrawn.

I move amendment No. 46:

In page 25, subsection (2), between lines 19 and 20, to insert the following:

"(c) the arrangement and hosting of public meetings,”.

The issue goes beyond trying to reach out to people in communities. I bring it forward again for consideration. Having policing bodies at local level is a very good idea and I am very much in favour of them as they fit into the idea of subsidiarity generally. However, such committees will not have a monopoly of wisdom on crime and its solutions. It would be useful, therefore, to have meetings from time to time to which the general public would be invited. I am not sure whether there is a need to include this. I merely raise the matter on the basis that committees should take this into account when doing their business and involve the citizenry at an individual level to the extent that they want to be involved. That is why I have included it as a function that such committees should be entitled to arrange and host public meetings.

This issue was raised in the Seanad. It is covered by paragraph (c) which allows policing committees to arrange and host public meetings concerning matters affecting the policing of the local authority’s administrative area. The point was made in the Seanad that certain groups managed to hold public meetings and hijack an issue to the exclusion of those which had a function in the area. That is the reason for the inclusion of paragraph (c).

On that basis I am prepared to withdraw the amendment.

Amendment, by leave, withdrawn.

Amendment No. 51 is consequential on amendment No. 47 while amendment No. 48 is an alternative to amendment No. 47. Therefore, as amendments Nos. 47, 48 and 51 are related, they will be discussed together.

I move amendment No. 47:

In page 25, subsection (2) (d), lines 23 to 25, to delete all words from and including “with” in line 23 down to and including “area” in line 25 and substitute the following:

"establish within specific neighbourhoods of the area, if the committee by qualified majority decides it is necessary to do so".

As I said during my contribution on amendment No. 40, I am making this amendment to section 32 following discussions with Mr. Padraic White, chairman of the National Crime Council. It is designed to meet a point about the appearance of a possible veto by the Garda Commissioner over the establishment of local policing fora. My first concern arose from the fact that unless there was some restriction on the creation of such bodies, gardaí would spend more time servicing commitments arising from them rather than on carrying out their policing duties on the streets. We want to ensure high visibility policing. I was concerned that the provision might place an unreasonable administrative burden on the Commissioner and the resources of the Garda Síochána.

We may be able to achieve the desired result by leaving the establishment of the bodies in question to the joint policing committees and removing the reference to the Garda Commissioner's consent. To place a reasonable threshold on numbers it seems they should only be established following a qualified majority vote at the committee. I wanted to stop huge pressure being exerted on the committee to continue replicating forum after forum. I refer to Deputy O'Keeffe's comment on how the spirit is willing but the flesh is weak. Political representatives, in particular, may be pushed into establishing a forum as it is difficult to say to a community that there are enough fora in an area and that one more would break the camel's back. One will then be immediately accused of discriminating against the area looking for a forum to be established. I want to ensure effective policing and do not want this to suck the Garda Síochána into a relationship that looks fine on paper but results in gardaí spending more time talking about problems rather than dealing with them.

I want to create a situation where there will be consensus on the establishment of a forum rather than where the majority can create another. The Garda Síochána is the only body whose absence would be noted and criticised and whose representation would be the subject of minute scrutiny. It could find itself pulled in every direction to attend meetings in every local authority area.

What is a qualified majority?

It is defined in amendment No. 51. It refers to two thirds of the votes cast by those in attendance. I do not want a situation where people can effectively veto a proposal by not turning up. There will be a substantial consensus that a forum should be set up.

Although I am not against this idea, is the Minister not leaving himself open on a technical level when he includes a reference to two thirds of the votes cast? I speak as someone with experience of meetings of football clubs, committee and political groups.

Deputy Costello has an amendment included among the group under discussion.

I am prepared to reconsider the matter on one basis. It might be strange if 40% could block the establishment of all fora. The idea is to prevent fora from proliferating. The Garda Síochána will not have a majority on any of the committees. I want it to have an emergency brake procedure if it cannot service every committee. I might confer on the Minister of the day the right to resolve disputes on whether a forum should be created. I accept that a two thirds majority means 35% can stop anything from happening. As this may not be desirable, it may be better to provide for some form of mediation where there is disagreement.

I will let Deputy Costello contribute but I do think it is a good idea to drop the veto.

My amendment seeks to delete the veto by the Garda Commissioner. The Minister's intention was not that it would act as a veto but that community policing fora would be established in line with the resources available to the Garda Síochána. The local policing forum is an integral part of community policing. The idea would be strangled if it was at the whim of the Commissioner on the basis that resources were not available. It is important that the entitlement to local policing fora be restated in a strong and formal manner.

What the Minister is proposing is reasonable but that brings us to the question of membership of a joint policing committee. We have ruled out voting powers for local authority officials but there will be a number of elected public representatives. If it is done on the basis of the area committee, the number will vary from eight to 12 locally elected public representatives in Dublin. Does this mean there will be a commensurate number of gardaí? A qualified majority means the locally elected representatives will make the decisions as there will be more elected representatives than gardaí, probably by a factor of two, three or four to one. Perhaps that is the way we should deal with the issue.

Can I shorten this discussion by withdrawing my amendment at this stage and accepting Deputy Costello's? I will come up with some mechanism on Report Stage to prevent undue proliferation of policing fora.

I welcome the Minister's recognition of the policing fora and hope when they are established, there will be limited resources allocated to service their needs. Rather than having the number divided by local authorities, with Dublin having one, my preference would be that each policing district would have a local policing authority in order that it would be closer to the community on a smaller scale. A plethora of policing fora would, therefore, not be needed. There might be several fora in a Garda district.

I will table amendments on Report Stage to alter the Minister's proposal regarding the joint policing committees such that they would operate at a lower level in the manner of a community policing partnership. I am not advocating a substantial change to his proposal. I hope mine would make the fora more effective and more part of the community. If they were associated with local authority areas rather than Garda districts, they could be distanced from the people.

Amendment No. 51 would leave the legislation wide open and bald. The new subsection (6) that the amendment proposes to insert states that "qualified majority" means at least two thirds of the votes cast. At what meeting are the votes to be cast and how much notice is to be given? Who is entitled to attend? The Minister will understand there was concern over a veto on the part of the Commissioner, yet there is recognition that we want the principle of subsidiarity to apply to the greatest extent possible and that, where there is a genuine need for a local forum, it should be met. The Minister stated that some brake was needed in order that there would not be a proliferation of unnecessary bodies. If he is reconsidering the matter, he should circulate his draft proposals to the Opposition spokespersons to ensure we would have an input rather than having yes and no responses on Report Stage, which would be ill-advised.

I will do that.

The Minister is correct to take a fresh look at the issue. The function of the local policing fora is limited under the section in that it states they will be established "to discuss and make recommendations to the committee". I am not sure whether the Minister intends this to be their only function.

To which amendment is the Deputy referring?

I am referring to section 32(2)(d). If we establish local policing fora to address issues in various neighbourhoods whose only role will be to discuss and make recommendations to the joint policing committee, we will be spancelling them to some extent. Gardaí, local community representatives and local public representatives will be members of the local policing fora. Surely their role should be more proactive than the one envisaged, which simply involves referring back to the joint policing committee. They should be able to identify, within their structure, problems in the neighbourhoods in which they are established. Both the gardaí and local authority representatives on the local policing fora would be directed to take action regarding such matters. As the legislation stands, the system could become overwhelmed by bureaucracy and matters pertaining to timescales. The recommendations should be expanded to allow the fora to take the initiative and action on their own bat in respect of issues of importance in their areas. They are to comprise gardaí, public representatives and members of the public. Therefore, they will be like miniature joint policing committees in terms of representation.

I agree with the Deputy. The provision is a little restrictive in that the local policing fora can only make recommendations to the joint policing committee concerning the matters referred to in section 32(2)(a) rather than give advice, as outlined in section 32(2)(b). Discussion could take place at local forum level also. I will reconsider the issue.

Amendment, by leave, withdrawn.

I move amendment No. 48:

In page 25, subsection (2)(d), line 23, to delete “with the Garda Commissioner’s consent,”.

Amendment agreed to.

I move amendment No. 49:

In page 25, subsection (4)(a), line 36, to delete “to the local authority”.

Section 32(4) states:

Not later than 3 months after the end of each year, the joint policing committee shall—

(a) submit to the local authority a report on the performance of its functions during the preceding year, and

(b) supply a copy of the report to the Minister, the Garda Commissioner and such other persons as may be specified in the guidelines issued under section 31.

On foot of what the Minister stated, if there is to be a true partnership, we should not allow one of the partners to operate a hegemony. The principle that the report should be submitted to the local authority in the first instance indicates that the Minister believes the local authority is the number one element in the partnership. The submission of a copy of the report to the Minister, the Garda Commissioner and others comes second. The report should be submitted to everybody on an equal basis.

My amendment seeks to indicate that the local authority should not be accorded priority in the partnership. If it were accepted, the rest of the section would probably have to be reworded. The legislation should state the joint policing committee shall produce a report on the performance of its functions — it is primarily a matter of producing a report — and submit it to all concerned.

I am sympathetic to the amendment. Its purpose might be achieved by removing the reference "to the local authority" and making paragraph (b) read as follows: “supply a copy of the report to the local authority, the Minister, the Garda Commissioner and such other persons as may be specified in the guidelines issued under section 31.” I would be willing to do this. Rather than do it now, we will do so on Report Stage.

The amendment would place an onus on the bodies concerned to consider the report. If they were merely supplied with a copy, it could be placed on the back shelf.

It is not just a question of deleting the words "to the local authority", as proposed in Deputy Costello's amendment. The phrase "to produce" or "to publish" should be inserted in the interests of openness and transparency. The phrase "To submit" implies one is giving those concerned a document for them to peruse and perhaps reject.

We have three different possibilities, namely, submitting, supplying and publishing.

That is why we will deal with the matter on Report Stage rather than on the hoof now. The consensus is that the report should be public, that it should be made to the local authority, the Minister, the Garda Commissioner and such other persons as specified in the guidelines.

Amendment, by leave, withdrawn.

Amendments Nos. 50 and 97 are related and may be discussed together.

I move amendment No. 50:

In page 25, subsection (5), line 46, after "statement" to insert "made without malice".

This amendment arises from the debate on section 32 on Report Stage in the Seanad. A question arose regarding the provision in subsection (5) dealing with the matter of privilege in the context of statements that might be made at a meeting of a joint policing committee or any committee established by it such as a local policing forum. The subsection was part of a comprehensive amendment tabled by me to section 32 in the light of the general debate on the provisions.

While dealing with the point relating to the matter of privilege, it occurred to me that it might be necessary to clarify the position on its application to subsequent statements. It seemed that it could render an injustice if somebody said something that was honestly believed at the time and covered by the doctrine of privilege but it subsequently became clear that it was a mistaken or untrue and defamatory statement and if somebody else repeated it dishonestly by way of publishing the minutes of the meeting at which the original statement had been made. That would be unfair to the person who was at the wrong end of the mistaken statement. If somebody accused somebody in public of something and at a subsequent meeting withdrew it, the idea that somebody else would be able to go and send a leaflet around the area indicating what had happened at the first meeting without referring to what had happened at the second, with privilege, would be unacceptable.

Does Deputy O'Keeffe agree with the Minister on that point?

In general, yes. However, on a related point, we are talking about a statement made in the course of discussion at a meeting of a joint policing committee and there is a reference to its sub-committees. The question arises as to what will happen when a statement is made at the local policing forum. What constitutes a sub-committee?

That is a good point, at which we will look.

It is not really a sub-committee; it is a separate body linked to and associated with it. Will the Minister look at the other bodies to ensure whatever protections we are providing for will apply in all cases? In the main, the thrust of the amendment is acceptable.

We will agree to the amendment and the Minister will look at the issue of sub-committees before Report Stage.

Amendment agreed to.

I move amendment No. 51:

In page 25, between lines 46 and 47, to insert the following subsection:

"(6) In this section ‘qualified majority' means at least two thirds of all votes cast".

Amendment No. 51 has already been discussed with amendment No. 47. How does it stand?

I am withdrawing the phrase "qualified majority".

Amendment, by leave, withdrawn.
Section 32, as amended, agreed to.
SECTION 33.

Amendment No. 52 has been ruled out of order.

It has been ruled out of order because it may give rise to a potential charge on the Revenue.

I am seeking to delete subsection (2)

It seeks to remove an indemnifying provision. If one were to remove that provision, people would be subject to damages which could involve a charge on Revenue.

Amendment No. 52 not moved.
Question proposed: "That section 33 stand part of the Bill."

To what extent does this section impose a requirement on the local authorities to have a role in crime prevention and the reduction of anti-social behaviour?

On the question of developing greenfield sites, to what extent does the developer engage with the local authority and the Garda Síochána on the lay-out of the estate and the possibilities for anti-social behaviour that arise because of the lack of open space and so on? To what extent will provision be made for bushy areas which might be hiding places for marauders to be retained for environmental reasons? I believe there should be an engagement between the Garda Síochána and the planning departments of local authorities with a view to anticipating the incidence of crime, for example, the recent incident in the stairwell of an apartment block. I can cite as examples a number of nasty incidents on the extensive campus of a university where the bushes and trees provided cover for marauders. Will this section make it easier for the Garda and the local authority to have an input? Will the Garda be able to state to the local authority that the lay-out of the university campus is a factor in the number of criminal incidents and that an audit should be carried out to make recommendations on improving the lay-out? I suggest the Garda should be involved with the planning department of the local authority in suggesting modifications to the lay-out of new developments as well as changes in the existing lay-out of areas where crime occurs.

The Chair ruled my amendment out of order. However if I explain its purpose, perhaps it could be addressed in another way.

I welcome section 33(1) which imposes a duty on the local authority. It states: "A local authority shall, in performing its functions, have regard to the need to take such steps as may be practicable to assist in the reduction of crime, disorder and anti-social behaviour within its area of responsibility." This emphasises that the local authority has a strong role in terms of its activities, maintenance, planning and so on. However, this provision is then rendered meaningless by the opt-out clause in subsection (2) which states: “Subsection (1) is not to be taken to confer on any person a right in law that the person would not otherwise have to require a local authority to take any steps referred to in that subsection . . .”.

Let us leave out the last clause which refers to the seeking of damages which I think is the reason my amendment was ruled out of order. While the section imposes an obligation, it also gives a caveat by stating "take such steps as may be practicable". There is, therefore, a limitation to the obligation but section 33(2) is a sweeping statement to allow the local authority to opt out totally. I hoped the Minister would be at least able to delete the last clause, "to seek damages for a local authority's failure . . .". There is no reason to include that. Should it not be possible for any person to have a right in law to require a local authority to take any steps referred to in that subsection, which is on crime, disorder and anti-social behaviour, within its area of responsibility in so far as practicable?

If the Minister leaves section 33(2) as it is, he introduces a responsibility on the local authority, which did not exist previously, but which already has certain parameters around it and would give a certain emphasis to the role and responsibility of the local authority. Many of us who have been local authority members would say that from time to time local authorities could have done more in terms of planning, layout, maintenance and the conduct of business. If the Minister gives them a complete opt-out clause, he might as well not include the earlier provision.

The section is designed for the first time to bring into the general systematic discharge of a local authority's functions a duty to have regard to taking such steps as may be practicable to assist in the reduction of crime, disorder and antisocial behaviour in its area of responsibility. Leaving subsection (2) aside for a moment, that has a number of consequences. It means that the local authority in making a decision under the intoxicating liquor legislation, for instance, must have regard to public order and criminality issues when it decides to give permission for certain matters such as new pubs, super pubs and nightclubs.

This provision is included for two reasons: first, to get the local authorities to think in terms of this dimension to the carrying out of their functions; and second, to counter the suggestion that somebody might object. This might occur, for instance, where a local authority rejected an application to build a super pub on the grounds that it would bring crime to the area and the developer responded that this is not the business of the local authority, which could take any such problem to the Minister and the Garda Commissioner who can deal with proper policing, that there is nothing wrong with this idea which is the same as ten others in the area, that it is ultra vires as a consideration and that the local authority is, in effect, trying to bring about a policing result in deciding whether to grant planning permission.

That is covered by the phrase "as may be practicable".

I am making the general point that the functions of this are, first, to create this positive duty on local authorities to take it into account and, second, to negative a potential argument by persons such as developers that it is not a duty of a local authority to have crime in the back of its mind and that it is a separate department for the Garda Commissioner, that adequate policing is a separate issue and that the local authority should not take it into account. It is worthwhile from that point of view.

Subsection (2) is designed to prevent a position arising where subsection (1), left baldly by itself, would vest in people a right of action for breach of statutory duty against a local authority for not taking all practicable steps in its area to discourage crime. Practicable, in this sense, has a meaning. Do we want to give the High Court the right to state that the local authority could have put up street lighting but instead decided to put up a plaque commemorating the Minister, Deputy McDowell, opening a highway or whatever? The High Court could state the local authority spent €5,000 on the plaque when it could have replaced all of these street lights and that a person's car has been vandalised as a consequence. The judge could state that having considered all the local authority did, like sending councillors on a junket, etc., it could have repaired the street lights. Such a position would vest in the Judiciary the right to compensate Mr. Joe Bloggs where he could state the local authority did not do everything practicable to eliminate crime. While our sympathy would be with Mr. Joe Bloggs, especially when one looks at the ugly plaques which litter every stretch of motorway announcing who opened them, in truth I do not want to create an industry whereby there is a new cause of action for breach of statutory duty to sue the local authority every time one can attribute loss and damage to its failure to take all steps that were practicable. For example, it would create a cause of action for a person, who either was a neighbour or was a resident in a social housing unit, to state that there is not adequate warden service there and that if there were a person on duty all night, the person's windows would not have been broken, his son or daughter would not have been assaulted or whatever. That would lead to the local authority becoming a general compensator for everything that any judge would consider a deviation from "such steps as may be practicable".

Then is it merely window dressing?

No, it is not window dressing. It has two purposes. First, it states to local authorities that they must take into account the crime dimension and anti-social behaviour dimension in discharging their functions. Second, it states to anybody who claims that is not one of the local authority's functions, it is acting as a busybody and it is acting ultra vires, that this is not the case. It is not creating a separate right of action for all those people.

I qualify all of that by stating that in the context of the recent discussion on ASBOs, the officials of my Department gave me an interesting article from a law journal drawing attention to a decision of the European Court on Human Rights in respect of a lady from Valencia in Spain who successfully sued the local municipality. She lived in an apartment block and had a substantial complaint about a local disco making her life unbearable. For some reason, which was not quite clear, the municipality continued to license the disco and continued to ignore her rights under the convention in respect of her home. She was awarded damages against Valencia municipality. Under the European Convention on Human Rights, in the particular circumstances of that case where the municipality had a licensing jurisdiction and had objective grounds to protect her, and she had brought to its attention the fact that it kept failing to do so, the Spanish state of which the municipality was regarded as an emanation was blamed for the local authority's failure to deliver.

In this opt-out clause the Minister is providing that no person can take any steps referred to in that subsection.

The phrase of crucial importance is "not otherwise". If, at present, there is a right to sue a local authority for negligence, for instance, I am not extinguishing it.

But this does not confer any right — good, bad or indifferent.

It does not confer a new right.

Therefore, it is window dressing.

It is not. It is window dressing if the Deputy considers it solely from the point of view of whether it confers new rights on individuals to sue or get injunctions in court. I will concede that to the Deputy.

The Minister is clearly stating to the local authority that it has a duty to do this but he is giving them a nod and stating that if they do not do it, nobody can take any action.

No. Under the Garda functions we did exactly the same.

I know that and that was another problem.

I am not in the business of conferring mass rights of action against the State, the Garda Commissioner or local authorities for everything that goes wrong in society. Lawyers would like me to create a generalised right to sue them for everything that goes wrong in society but I cannot do that.

The Minister is asserting what seems to be a right in providing that "a local authority shall". However, the next subsection takes away any meaningful operation of that right. What is the value of putting it in that stark fashion?

I will give an example. I was a barrister in a case — as it is reported in the Irish Reports, I have no inhibition about talking about it — where people in County Cavan sued the county council for failing to keep the roads in good repair and produced appalling evidence of holes the size of a horse in the road.

Some of them got elected.

That was before. On foot of their election they took an action against the county council. They won in the High Court after some delay. The county council and the then Attorney General appealed against them in the Supreme Court and won on the basis that there is a generalised duty on local authorities to conserve the roads but it is not actionable at the instance of individuals and neither injunctions nor damages were to be handed out. That related to the Roads Act and the duty under the local government Acts to maintain the roads. There are such things as duties of local authorities which are not actionable at the instance of an individual who claims they have been breached.

I wish to approach the issue from a different direction. I understand Deputy Costello wants to try to push the local authorities on using this power effectively. Two things occur to me from the discussion so far. One is that it is a good idea, as the Minister says, to remove the potential argument on the part of developers that it is not the local authority's business to stick its nose into matters that relate to crime and anti-social behaviour. If this section achieves that, it goes some of the way down the road.

A number of things occur to me regarding the section, particularly subsection (1). I am not in favour of opening up a Pandora's box of individual claims against local authorities. It would not do much for anybody. As this section is now framed there are many outs for local authorities. The section uses the word "shall" rather than "may", which is good. It relates only to the performance of its functions — all the local authority has to do is have regard to the need to take steps as may be practicable. Who decides what is practicable? This could lead to a situation where some local authorities take an interest in this area and some do not.

We are then into the area of assisting in the reduction of crime and disorder and — my old favourite — anti-social behaviour. I note there is a debate about anti-social behaviour orders. I am trying to have a debate about anti-social behaviour, which is an entirely different debate. I do not see any definition in the Bill of what constitutes anti-social behaviour. There might be a need to provide one if we are to leave the section as currently framed. That is not my main point. I raise it as something that should be dealt with in tidying up the section.

To return to my earlier point, to what extent will this section give local authorities the right or impose a responsibility on them — they are two separate lines of thought — to have consultations with the Garda Síochána on new projects and spaces that are considered dangerous and might be used for crime or anti-social behaviour? In terms of existing situations, if the local sergeant or superintendent attributes criminal activity in an area partly to the layout of the area and decides it could be dealt with by, for example, clearing bushes on an open space which may or may not be under the control of the local authority, to what extent will this section deal with that type of situation?

At the moment there is no statutory obligation on developers to consult with the Garda Síochána on the planning of estates under local authority or planning legislation. The Garda Síochána has enough to do without having to pore over plans to work out whether alleyways in a proposed development could be dangerous. That is a duty for the local authority rather than the Garda Síochána. Gardaí cannot be expected to spend their time doing that.

Is there a case for placing an obligation on developers or local authorities to consult the Garda Síochána if a development is above a certain size?

I would say not. It would be more satisfactory if local authorities consulted in a generalised way with the Garda on problem issues and planning departments then applied the principles to individual developments as they saw fit. We cannot have the Garda consulted on every issue. The traffic, roads and sewage departments and so on deal with these issues. We cannot have the Garda sucked into that area.

Deputy O'Keeffe raised another question. If the layout of an estate or institution gives rise to public order or criminality issues as far as the Garda is concerned, does this give any positive right to do something about it? The answer is "no". If, for example, there was a grove of trees in Trinity College where people were jumping out and mugging or raping students and the local gardaí had the right to go in with the equivalent of a dangerous building order and tell the Provost at Trinity College to cut down the trees or fence them in, that would give them great power. Decisions could be quite subjective. The residents in a leafy suburb might decide that even though there have been four incidents involving a copse of trees in the area, they still like them and refuse to cut them down or fence them in. That would be within their rights even though they accept there is a risk of criminality as pointed out by the local Garda superintendent. However, to give to the Garda or the local authority the right to order the trees to be cut down or something done to them would be, effectively, licensing people's property rights and might be going too far.

On the other hand, in making decisions on whether to grant planning permission for certain types of activities, such as the establishment of a chain of café bars or the introduction of late opening hours for a nightclub, local authorities can certainly bear in mind and cite criminality, law and order issues and anti-social behaviour as reasons for making their decisions. This is on foot of their being given the right to introduce a motion with consequences for late-night openings or on foot of the enforcement of the intoxicating liquor legislation. In that context, somebody who is aggrieved by a local authority's decision and who may have wanted to set up a chain of café bars or have late opening hours for his nightclub, for example, cannot say that consideration was ultra vires of the local authority and that it was not the business of the local authority to be second-guessing the Garda on public order issues.

I do not want to press the matter unduly. I am aware of cases in which the Garda has raised concerns but could not do any more. I am not trying to load extra burdens on the Garda. The Garda is taking its duty seriously but when it wants to control crime in an area and has genuine concerns about the kinds of cases of which I am talking, all it can do is raise concerns. It can do no more.

It is a question of balance. If the Deputy owned a property in Skibbereen which he had allowed to become derelict, the local authority could take over the derelict site. Consider what would happen if the Garda concluded that a non-derelict property owned by the Deputy should have a six-foot gate because of its being used by delinquents to do A, B and C and the local authority served a notice on the Deputy requesting him to abate the criminal opportunity in the interests of the community. This would be a very heavy power to give the authority. The Deputy might ask about his rights and state that he wanted open access to his field or property.

I accept that is the case in respect of a private property. I had in mind a university campus, which is peopled by thousands of young people who are entitled to some protections. They are not receiving these protections in some instances.

There is nothing to stop the joint policing committees considering matters of that nature, concluding there is anti-social behaviour arising from a problem associated with a particular private institution and then deciding it will bring the problem to the attention of those in charge. It would be more of a moral act than an act on the basis of a statutory entitlement to do something about the problem itself. This would happen on a widespread basis. Likewise, I expect the remit of the joint policing committees will allow them to discuss new developments that might have an impact in the locations for which they will have responsibility.

Deputy O'Keeffe might take some solace from my next point. If a large religious order running a college to which people have access, or a university or VEC, got a letter from the local chief superintendent stating a particular grove of trees was being used as a location for certain defined anti-social behaviour and the recipients of the letter rang their lawyers or insurers to ask whether they could ignore the letter without civil liability, they might get a very conditional reply at the very best. Alternatively, they might be told to do something about the problem on the grounds that, as occupiers of the land, they have certain responsibilities regarding the safety of their invitees and licensees.

It appears that Deputy Costello's point might partly cover the issue.

I hope it does. I imagine it would be part of the role of the joint policing committees to consider any possible future developments that would have an impact in their areas.

On the Minister's statement on subsection 33(1), I am not happy with the opt-out clause. It is too blunt. Although the Minister is saying there are duties imposed on the local authority, could these duties be asserted a little more strongly? Although the word "shall" is used, why not delete "as may be practicable"? It is hardly necessary. Thus, the subsection would read: "A local authority shall, in performing its functions, have regard to the need to take steps to assist in the reduction of crime, disorder and anti-social behaviour within its area of responsibility."

I will examine it for Report Stage. It may be implied in any case. The Department of the Environment, Heritage and Local Government will be looking over my shoulder very much in this regard.

I do not know why it is not looking over the Minister's shoulder more at present. Are all the provisions agreed with the county and city managers and the Department?

Yes. They have been consulted fully, but I am not free to impose new liabilities on them. My colleague, the Minister for the Environment, Heritage and Local Government, Deputy Roche, would have a torpedo over it fairly rapidly if I stepped out of line.

Deputy Costello advocated the deletion of the words "as may be practicable". Alternatively, one could delete the words "have regard to", which seem to be unnecessary. Thus, local authorities, in performing their functions, would "take such steps as may be practicable".

I agree it is very inarticulated and loose.

It is a woolly obligation at present.

I shall consult the draftsman on whether the provision can be tightened without unintended consequences.

Such as a break-up of the coalition. What about the point on the definition of anti-social behaviour?

There is no definition of "crime" or "disorder" either. Anti-social behaviour will be defined in the context of the ASBO legislation. If one is creating a jurisdiction for a court to create an enforceable order against somebody, one must be clear what one is talking about.

Will the Minister define it in the Criminal Justice Bill?

Yes, I will do so soon.

And Deputy Costello will amend it.

I will try.

The Minister might give us advance notice of his thoughts before Report Stage.

Question put and agreed to.
Progress reported; Committee to sit again.
The select committee adjourned at noon until 9.30 a.m. on Wednesday, 18 May 2005.
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