Deputy Costello is opposing this section.
SECTION 34.
Question proposed: "That section 34 stand part of the Bill."
Yes. I am not opposed to the Garda Commissioner obtaining the views of the public about the state of crime or anything of that nature. As this is tied into community policing and the structures in place to provide local mechanisms to maximise and help more effective policing, anything to do with the role of the Garda in terms of accountability should be elsewhere in another section, for instance, in the next section which would be more appropriate.
This chapter of the Bill is largely about determining the views of the public and that is the reason the community and business sectors are involved so that their views are represented. Including this section in this chapter would seem to state that while everybody else is engaged in a partnership when dealing with offences, the views of the public on the local situation and the work of the joint policing committee would be garnered separately by the Garda Commissioner. It would be more appropriate in this chapter if the views of the public were sought and obtained through the structures being set up and that it would be the responsibility of the joint policing commission to seek the extent of crime and matters concerning policing.
The responsibility for overall policing lies with the Garda Commissioner. My concern is that the location of this section is inappropriate. The job of seeking the views of the public should be undertaken by the joint policing committees. If they are to carry out their work in proper fashion, they must know what is going on. From time to time it would be appropriate to call a public meeting and seek the views of the public and this is being provided for in the Bill. I suggest this section is redundant under the terms of Chapter 4 and that if it is to be included, it should be restructured or reworded to reflect the role of the joint policing committees.
I have been fearful for some time that if community policing is to work satisfactorily, the results will not be seen within the lifetime of any Minister or Commissioner. There is a tendency from a career point of view to look for results by means of consultation and statistics but this is not what community policing is about. The concept is excellent but it may take longer to build up public confidence than mere statistics and consultations will initially show. I am therefore a little concerned if the Garda Commissioner or the Minister is trying to show how well it is working, we will not be given the true picture of the development of community policing and how it may evolve into an excellent force in the longer term. In that context I have certain concerns.
The purpose of this section is not to supplement local policing committees. It has nothing to do with either local policing committees or community policing. The local issue is dealt with in section 32(2)(a), (b) and (c). Section 34 is different and is modelled on provisions which are in other statutes, making it a function of the Garda Commissioner to monitor public views about policing and the state of crime. This section deals with arrangements for obtaining the views of the public, not the views of local groups, about crime and policing. I want to provide a benchmarked assessment and a benchmarked standard of public confidence in the policing function and in the state of crime to show upward or downward movement in confidence in these issues.
The Commissioner can test public opinion. Rather than have this done in circumstances which are just there to self-validate, whenever he proposes to do this he must come to the Minister of the day and have the Minister consider his proposal to gauge public opinion. The reasoning behind this provision is because the Minister will also have an interest in the outcome of these views.
Any newspaper can run one of these surveys any day of the week. There is nothing to stop the Irish Independent, the Evening Herald, the The Sunday Tribune or the The Star running a poll of this kind; it is not a monopoly. This is not purely an enabling provision. Section 34(1) states, “The Garda Commissioner shall make arrangements for obtaining the views of the public about matters concerning policing and the state of crime.” I have in mind that this should establish year-on-year a fair gauge of policing and the public’s views on crime. I do not want unreliable material of this kind. Any newspaper could report tomorrow that 90% of people believe that crime is awful or that 30% of people have lost confidence in the Garda Síochána. I cannot stop them from reporting that or carrying out their own public opinion surveys as they wish. However, we should have a benchmarked constant indicator of public views on these issues. It should not simply be a private matter for the Garda Commissioner to devise questions that suit his point of view. The Minister, who is accountable to the Dáil, should also have an input and be in a position to insist that the survey takes a particular form.
I have no problem with what the Minister suggests. Of course the Garda is right to obtain the views of the public on anything related to policing and crime, and the Minister also has a role in the matter. My point is different. What the Minister has said is logical. However, the problem partly arises with the title of Chapter 4, which is Co-operation with Local Authorities and Arrangements for Obtaining Views of the Public. This needs to be amended as it is not an accurate reflection.
The intention was to have two separate items. If the Deputy believes they are being confused or linked together, perhaps we could move the sub-heading lower in Chapter 4 in order that it does not appear before the section.
While it is eminently reasonable, it does not fit into the chapter. If it were left out of the chapter, it would be necessary to retitle the chapter as it does not relate to co-operation with local authorities either.
We will consider relabelling it. I agree with the Deputy and I do not see why it necessarily comes into that chapter. However, it is a different concept relating to——
It relates to the overall national responsibilities of the Garda.
We might move it to somewhere else in the Bill.
I have a second objection to the section. As the Chairman knows, the committee went to great lengths to obtain the views of the public on the function of the joint policing committees. Recommendations Nos. 10, 11 and 12 of the report of the Oireachtas joint committee are relevant to this matter. Recommendation No. 10 proposed that local household crime surveys should be conducted annually throughout the jurisdiction of the local authority area committee to inform the joint policing committee. In other words, surveys should be carried out to inform the joint policing committees of the extent of crime. The data should be gathered through local household surveys as opposed to the reported crime statistics of the Garda, which do not give an accurate reflection. Recommendation No. 11 proposed that the joint policing committee, in consultation with the Garda authorities, should identify the priorities of the local area, develop a comprehensive crime prevention strategy and formulate this into a local policing plan for the area.
Recommendation No. 12, which is also related to this area, proposed that procedures be introduced to ensure that a proportion of the joint policing committee meetings are held in public. If we are to provide the joint policing committees with a source of information, the committee believed that local household surveys should be held on a regular basis to inform them and that some of the meetings should be held in public to get the views of the public. These would tie in with the substantial thrust of the section provided the reference to the role of the Garda Commissioner were moved from section 34 and relocated to another area that better reflects the national role of the Garda Commissioner than the more specialist role of community policing in this section.
Who decides the scope of the household survey?
The CSO does it at the moment.
The CSO carries out a certain amount of household surveys on crime. However, it mainly focuses on employment and other factors.
Perhaps the policing committees should request the CSO to include this rather than copperfasten it into statute.
Did the National Crime Council under the chairmanship of Pádraic White not make proposals on crime audits? The Minister established the expert group on crime statistics, which would have some input into this matter. Regardless of who does it, it should be done on a proper basis as there is a significant difference between what the CSO has found in household surveys and what the Garda reported on crime.
As I indicated we have moved towards producing quarterly crime statistics. It is my intention that the CSO should take up the function of validation of annual crime statistics. It should also reconcile details of reported crime, or fail to reconcile them as the case may be, with its household crime surveys. It would be better for the CSO to spend its time doing this rather than it being done by gardaí who qualify through Templemore to become policemen and not to spend time producing statistics for the public. It would be preferable for the public to see that the statistics I publish have been collated by an independent statistical agency. There is a sense that when people develop statistics about themselves they are advocates in their own cause.
Does the Minister see merit in statistics being available at county or joint policing committee level?
Yes, this should certainly be done for Garda districts.
Could section 34 not be changed to reflect the more localised role of the joint policing committee?
I am trying to be practical about this matter. A committee might be devised for the Dublin City Council and might have sub-committees. Considerable money will be spent on annual crime surveys and I do not want to set targets we will never reach. The Deputy will know how difficult it is even for a political party to run an opinion survey in its area. For each local policing committee to do this every year would be a mammoth task. I do not want to be excessively ambitious. While nothing in the Bill would prevent it from happening, I do not want to set targets that would subsequently lead people to say we were not delivering on what is in the Bill.
We appreciate that point. It would depend on the degree to which the CSO surveys cover the entire country as to whether the statistics could be broken down by urban areas versus rural areas etc. I presume recommendation 12 would not present a problem for the Minister. It proposes that procedures be put in place to ensure that a proportion of the joint policing committee meetings are held in public, which at least provides an informal way of getting the views of the public.
The joint committee recommended that "a proportion" of the policing committee meetings be held in public.
Yes.
Section 31(2)(f) of the Bill states that guidelines must be produced on “the circumstances in which committee meetings may be held otherwise than in public”. There is a presumption that the meetings will be held in public.
The joint committee's 11th recommendation was that plans be put in place on an annual basis.
That is associated with this section of the Bill.
We are repeating the debate we had the last time we considered this Bill.
Yes.
There is nothing to stop any of that from happening.
Yes.
If I start putting that into law, the joint policing committees will be completely hidebound. Their agendas will be set, more or less, and their budgets will be consumed by having to do statutory functions. One might find that the Bill as worded offers more flexibility.
The Minister has suggested that he move amendment No. 34 to a more appropriate position in the Bill.
I will consider whether I can find another place for it in the Bill. That the two sections in question are included under Chapter 4 does not mean they are the same. We needed to find a place to park them.
The Minister will examine it.
I am satisfied with the Minister's comments on community policing. The last time we met, we spent some time discussing the manner in which a local policing forum might be established, but we did not come up with solutions. The Minister said he would examine the matter. Perhaps the joint committee's eminently reasonable recommendation in this regard — recommendation No. 13 — should be considered. The committee recommended that any decision to establish local fora should be made by the joint policing committee, in consultation with the relevant chief superintendent. We could avoid the need for a qualified majority or any vote by differently weighted groups. The decision could be made by the joint policing committee, having consulted the chief superintendent in the locality. I am not sure whether the chief superintendent is the only person who should be consulted, but it would be appropriate to consult him or her. If the Bill were to include the provisions of the joint committee's 13th recommendation, it would put in place a structure that would not be reliant on various voting mechanisms.
The Deputy is revisiting some aspects of the debate we had earlier on Committee Stage.
I can raise this issue as part of the debate on Chapter 4 as a whole.
We are not discussing the chapter, we are finished with it.
We have to examine the chapter before we move on.
No.
Yes.
The Bill is scrutinised section by section.
Deputy Costello is like a sewing machine because he is going backwards and forwards all day.
The Minister should not get personal about the matter.
No. My officials are considering the points which have been made so far on Committee Stage.
I ask the Minister to think about the useful mechanism I have suggested as a means of resolving this tricky problem.
It is tricky.
Yes.
I am grateful to Deputy Costello for suggesting a particular wording. Something along those lines might be accepted. We will look at it.
I am sure the Minister does not want to discuss some of the other aspects of this matter.
Can we come back to those aspects on Report Stage?
We will return to them.
Question put and agreed to.
SECTION 35.
I move amendment No. 53:
In page 27, subsection (3), lines 1 to 3, to delete paragraph (a).
This section of the Bill provides that the Garda Commissioner will be the force's accounting officer.
This amendment proposes to delete the section of the Bill that states that when the Garda Commissioner becomes the accounting officer of the Garda and assumes various responsibilities as a consequence, he shall not "question or express an opinion on the merits of any policy of the Government or a Minister of the Government or on the merits of the objectives of such policy". It seems that the inclusion of such a provision would gag the Garda Commissioner. If he cannot be critical or "express an opinion on the merits of any policy of the Government or a Minister", he will be prevented from having any useful role. I assume the Minister would not like to appoint a Garda Commissioner who is so wimpish that he does not have an opinion and does not wish to express a criticism of any policy.
The Deputy's tongue is stuck in his cheek.
Not at all. It is desirable to have a fairly robust Commissioner who can ask questions and express opinions. I do not suggest that such a Commissioner would not be able to carry out his duties. This section of the Bill undermines the character and position of the Commissioner by making it impossible for him to express an opinion or ask a question about the merits of any policy.
I look forward to the day when Deputy Costello, as Minister for Justice, Equality and Law Reform, opens the Irish Independent, The Irish Times or The Star and sees the headline Commissioner Radically Disagrees with Minister Costello. I would love to see the state of Deputy Costello’s breakfast table after he drops his newspaper.
The Commissioner has a right to an opinion.
The purpose of the Commissioner is to work as part of a team with the Minister of the day. A Commissioner could truthfully say he disagrees entirely with the Minister's ideas, but will loyally adhere to them nonetheless, but what reality is there to that?
Deputy Costello knows it is just not on.
Not really. This section of the Bill is expressed in such terms——
There is nothing novel about the wording, which derives from the standard wording that applies under the compellability provisions to all public servants summoned before an Oireachtas committee. It would be deeply embarrassing for a Commissioner to be forced to take personal positions on every policy that a Minister asks him to implement. If ordinary rank and file gardaí hear the Commissioner criticising and differing from the Minister about a policy they are bound to implement as a matter of duty, it will be contrary to good order and discipline within the force. I do not propose to allow that to happen.
The Commissioner does not need to do it in public, but surely he can "express an opinion on the merits" of a policy.
He could have a secret meeting with the committee.
Sinn Féin will propose an amendment to section 35(2)(b) on Report Stage so that it refers to “the economy, efficiency and effectiveness of the Garda Síochána in using its resources”.
The Deputy has highlighted his party's intention to move an amendment on Report Stage.
Yes. We will also table an amendment to section 36.
We have not reached section 36 yet. I will allow the Deputy to speak on section 36.
We will propose just one amendment to section 36.
Amendment, by leave, withdrawn.
I move amendment No. 54:
In page 27, between lines 11 and 12, to insert the following subsection:
"(4) Whenever required to do so by any other committee of either or both Houses of the Oireachtas, the Garda Commissioner shall give evidence to it on such matters as the committee concerned requests.".
This amendment will increase the accountability of the Commissioner by requiring him to give evidence to committees other than the Committee of Public Accounts. It would be appropriate to include in legislation dealing with the accountability of the Garda Commissioner a reference to the Joint Committee on Justice, Equality, Defence and Women's Rights in particular. That committee and other committees should have a statutory entitlement to compel the Garda Commissioner at any time to attend one of its meetings.
I do not understand why the Garda Commissioner should not be compelled to attend meetings of the Joint Committee on Justice, Equality, Defence and Women's Rights, as required. That committee needs to inform itself about policing matters from time to time as part of its work. While I accept that it is important for the Garda Commissioner to be accountable to the Committee of Public Accounts about financial matters, some related matters are also important in the context of accountability. Any committee which might be appropriate should be included, especially the committee with responsibility for justice.
The amendment would impose on the Garda Commissioner unique obligations not imposed on any other public service office holder to go before any committee including those not endowed with compellability powers at any time to testify on any circumstance a committee wanted to hear about. It would single the Garda Commissioner out as the most compellable person on any issue before any committee of the Oireachtas. While every other public servant would be free to rely on ordinary provisions of compellability, the Commissioner would be singled out for a completely different regime. I do not propose to take that approach.
I stress that I do not know of any occasion, however, on which the Commissioner has refused to come before this committee having been given reasonable notice. There may be some future circumstance in which he has a very good reason to decline to come before the committee unless compelled to do so under compellability provisions. I cannot imagine that it would be good practice to single out the Garda Commissioner and put him at the beck and call of every Oireachtas committee which chose to hear him. The mind boggles as to where it would end up. Would the Joint Committee on Health and Children ask the Commissioner to attend to discuss drunkenness at casualty wards? Would the Joint Committee on Education and Science call the Commissioner in to discuss worries about gardaí going to schools to find asylum seekers? He would spend half his day waiting for summonses to the Oireachtas. I do not intend to put the Commissioner in a uniquely vulnerable position in the public service. If we were to make such provisions, why not include ambassadors, Secretaries General of every Department and every other public sector accounting officer?
The Garda Commissioner will be accountable to the Committee of Public Accounts as an Accounting Officer and subject to compellability provisions to come before any committee with compellability powers. He will, in the normal course of events, make himself usually available in usual circumstances, as he has always done, to a responsible request for his presence by a committee of the Oireachtas.
Deputy Costello will acknowledge that the current Commissioner has always been amenable to requests the committee has made of him to attend. Commissioners come and go, however.
Commissioners come and go and I understand that a Commissioner went who was not so forthcoming in responding to an invitation to attend the committee. As a Commissioner has refused to attend the committee, it should not be left to the discretion of the office holder to make the choice.
Section 35 provides that whenever required to do so by the Committee of Public Accounts, the Garda Commissioner shall give evidence to it.
As Accounting Officer.
Section 35(2)(c) provides that the Commissioner shall give evidence on systems, procedures and practices employed by the Garda to evaluate the effectiveness of its operations. Those are matters which concern the Select Committee on Justice, Equality, Defence and Women’s Rights. I give the examples of Operations Anvil and Crossover.
While that is true, the Secretary General of the Department of Education and Science, for example, is also bound to appear before the Committee of Public Accounts as Accounting Officer. It does not mean he is also bound to appear before any other committee of the Oireachtas which decides it would like to hear from him.
My point is that he should be. I am quite prepared to leave the term "any other committee" out of my amendment. The thrust of my remarks is that the Commissioner should be obliged to appear before this committee when requested. If the Commissioner is to be required to appear to account for money to the Committee of Public Accounts, why should he not be obliged to come here to account for Garda operations, which are matters of significant public concern? The committee has a responsibility.
The short answer, which I hope does not sound in any way flippant, is that the person accountable to the Oireachtas for the policing function is the Minister for Justice, Equality and Law Reform. I receive parliamentary questions every day and I am available to the committee and Dáil. The Executive arm of the State is accountable through its Ministers to the Oireachtas. The Secretary General of the Department of Education and Science, for example, is not separately accountable to the Oireachtas, excepting the Minister, except under compellability provisions or as Accounting Officer under the rules of the Committee of Public Accounts. It is not the case that public servants are answerable to the Houses of the Oireachtas. According to constitutional practice, it is Ministers who are answerable.
Does the Minister have a problem with requiring the attendance of the Commissioner at the Committee on Justice, Equality, Defence and Women's Rights, which is the appropriate committee for him to attend? The other committees can be left out. While the Minister is the responsible person, the legislation places additional logistical and operation duties on the Commissioner. In that context, certain detailed information the Minister could not be expected to provide could be given to the committee by the Commissioner.
That is precisely the point. The Minister is accountable to the Oireachtas for the policing function in the State. If we provide that the Commissioner and chief superintendents should also account for themselves to a committee, we will, in effect, substitute the committee for the Minister.
The Minister said himself that he did not interfere with the Commissioner. When the Commissioner came to the Minister with the plan for Operation Anvil, the Minister accepted it and provided funding. Is there anything wrong with the committee inviting the Commissioner to talk to us about such matters?
There is nothing wrong with inviting the Commissioner to attend. Normally, he responds positively to such invitations.
There is nothing wrong with the committee requiring the Commissioner to attend.
The person who is accountable to the Oireachtas for Operation Anvil is the Minister for Justice, Equality and Law Reform. We cannot provide for circumstances in which the committee can demand operational accountability and to be told exactly what happens from one week to the next.
I did not mean it like that. If the committee invites the Commissioner to appear, he should be required to attend.
That is not the case in respect of any other officeholder I know of anywhere.
The Minister is never slow to take an initiative.
According to Standing Orders, the Dáil may confer certain powers, including, subject to any constraints otherwise prescribed by law, power to require that principal officeholders in bodies in the State which are partly or wholly funded by the State or which are established or appointed by members of the Government or by the Oireachtas shall attend meetings of the select committee, as appropriate, to discuss issues for which they are officially responsible, provided that such an officeholder may decline to attend for stated reasons given in writing to the select committee.
The power is already available.
Except that an officeholder can decline for stated reasons.
That is interesting. I did not know that.
The committee has greater powers than the Minister thought, but lesser powers than we thought ourselves.
The stated reason might be "The Minister told me not to attend".
At which point, we would have to invite you.
That is pretty much it.
Standing Orders allow the committee to invite the Commissioner to attend. If the Minister told him not to attend he would not, of course.
I would have to face the music if I gave such a direction.
Must the "stated reasons" to which Standing Orders refer be provided by the person or the Minister?
The person would state the reasons.
Amendment, by leave, withdrawn.
Question proposed: "That section 35 stand part of the Bill."
In relation to that, I have been advised that I should table a technical amendment to extend the definition of "Departments" in the Comptroller and Auditor General Act to include the Commissioner to put him on a par with other Accounting Officers.
Question put and agreed to.
SECTION 36.
I move amendment No. 55:
In page 27, subsection (2), between lines 17 and 18, to insert the following:
"(b) one person nominated by the Garda representative bodies;”.
The opinion is that the audit committee should have at least one representative of ordinary gardaí. It is felt that it is insufficient for their interests to be represented only by an assistant commissioner.
It would be extremely unusual for such a person to be nominated to the audit committee of any body. If we were to apply the analogy to the health board, that would mean that health board staff should be on the audit committee of the health board. Should staff in a semi-State body have nominees on its audit committee? This is an audit committee the purpose of which is to go through the accounts and check them. It would be most unusual to engage in participative democracy on the audit committee function.
Will the audit committee be composed of people with expertise in matters relevant to that function and one member of management?
Let us be clear. The audit committee on occasion might have to investigate matters of sensitivity either to the Garda representative bodies or to Garda management which might embarrass a person nominated by the Garda representative bodies. In the circumstances it would be a unique change to do that and I am not attracted to the idea.
Why should the Garda Commissioner establish and appoint everyone on the audit committee except for the one member to be appointed by the Minister? Would it not be better for the audit committee to have a more independent nominations procedure? It will have responsibility for such matters as public procurement and so on. It would appear that the legislation is providing for an internal body within the force to be selected by the Garda Commissioner without any particular criteria. Not only would the Commissioner select the members, he would also select the chairperson.
The audit committee is supposed to be a watchdog on how the Garda force and the Commissioner carry out their work. The proposed selection process for the audit committee is contradictory in that it is supposed to provide an independent public audit but it is selected solely by the Garda Commissioner with one person nominated by the Minister.
The purposes of this committee are set out in section 37(1). They are to advise the Garda Commissioner, to carry out the function of reporting to him and to provide the Minister with a copy of each report. Since he is the person to whom the members of the audit committee report, it is considered that he should be the person who makes the appointments, subject to the right of the Minister to nominate one member.
Numerous bodies come before the Committee of Public Accounts. When internal audit groups come before us, especially the head of section, I suggest that the Accounting Officer or his or her deputy would not be present. In this case the deputy Garda Commissioner should probably not be in attendance but the three independent experts could be there. However, there may be a problem with independence if they are appointed by the Garda Commissioner. The whole idea does not tie in——
It does not tie in with accountability.
——with normal situations.
I will put it this way. The board of directors of a company would normally appoint the audit committee of a company.
That is correct.
In this respect the Commissioner is equivalent to the board of directors.
However, the internal auditor would then report to the audit committee in the absence of the chief executive or his appointee in order that the internal auditor could then tell the real story without fearing for his or her job.
I will look at all this again between now and Report Stage. I want a solid, workable audit committee which will work in harmony with the Commissioner. The Comptroller and Auditor General has a different purpose altogether. He is the public watchdog. I will consider the matter further between now and Report Stage.
It is quasi-commercial, not entirely commercial.
Amendment, by leave, withdrawn.
Question proposed: "That section 36 stand part of the Bill."
We intend to table an amendment to section 36(2)(c) which refers to “not fewer than 3 other persons who have relevant skills and experience and none of whom is, or has ever been, a member of the Garda Síochána.” We wish to add to that, “who shall be appointed based on merit alone after a transparent public tendering process”.
Section 36(3) states: "The Garda Commissioner shall designate as the chairperson of the audit committee one of the persons appointed under subsection 2(c).” This is another link in the Commissioner’s control of the audit committee. Section 36(4) states: “The members of the audit committee hold office for the period that may be determined by the Garda Commissioner.” It would appear that the audit committee is very much under the control of the Commissioner in terms of its structure and operation.
I will examine all this and come back to the committee. If it is unconventional, I will review it. If it is conventional, I may come back and say I am happy with it. However, I will look at it.
Yes.
Section 36(4)(b) states that a member of the committee “may at any time be removed from office by the Commissioner with the Minister’s consent”. The current wording is very open. Perhaps it could be included that stated reasons must be given.
Perhaps the Minister would look at section 37 when he is looking at section 36.
Yes, I will.
Question put and agreed to.
Section 37 agreed to.
SECTION 38.
Amendments Nos. 56 and 57 are related and will be discussed together.
I move amendment No. 56:
In page 29, subsection (2), between lines 8 and 9, to insert the following:
"(a) the incidence of anti-social behaviour, action taken in response to anti-social behaviour, and the measures which have been put in place to prevent and reduce the incidence of anti-social behaviour;”.
Crime in general is difficult to report and quantify. The incidence of anti-social behaviour would be almost impossible to quantify because there would be arguments over its definition. It would be difficult for the Garda to count individual incidents of anti-social behaviour unless they constituted offences. If somebody says his neighbour has shouted at him 100 times over the fence, is the Garda to quantify it in some way?
The Housing (Miscellaneous Provisions) Act 1997, which enables local authorities to remove tenants, defines it as any behaviour which causes or is likely to cause any significant or permanent danger, injury, damage, loss or fear to any person working or living lawfully in or in the vicinity of a house provided by a local authority, including violence, threats, intimidation, coercion, harassment or serious obstruction of any person. In the United Kingdom, one requirement in applying for an anti-social behaviour order is "that the person has acted, since the commencement date, in an anti-social manner, that is to say, in a manner that caused or was likely to cause harassment, alarm or distress to one or more persons not of the same household as himself". These are very subjective definitions.
If we introduce anti-social behaviour orders, as we are all planning to do, there may be merit in a reporting requirement pertaining to the amount of anti-social behaviour orders for which chief superintendents have applied in the courts.
I accept that anti-social behaviour is quite difficult to quantify and therefore I will withdraw the amendment. I do not want it to be associated with the anti-social behaviour orders because I am not sure we are all in agreement with them.
It may well be that Deputy Murphy is having doubts about anti-social behaviour orders but the electorate has no doubts about them. The outgoing and incoming Governments in the United Kingdom have received overwhelming public support for them.
Amendment, by leave, withdrawn.
Section 38 agreed to.
SECTION 39.
Amendment No. 57 not moved.
Question proposed: "That section 39 stand part of the Bill."
Section 39(1) states: "The Garda Commissioner shall ensure that, in respect of each specified period, statistical information concerning offences, criminal proceedings and the state of crime in the State is compiled and stored." Does this relate only to reported crime or is there a broader definition of the state of crime in the country? It would be no harm if the latter were reflected in the Bill. Nobody is too happy with the idea that statistics on reported crimes serve as a useful indicator in putting plans together to deal with the problem. Will the Minister broaden the definition?
The Commissioner can only supply information on reported crime. He cannot conjure up figures pertaining to matters about which he knows nothing. I accept the Deputy's point that a proportion of crimes go unreported. We all have experienced minor acts of vandalism and asked ourselves whether we should bother reporting them to the Garda. If somebody spray-paints the wall outside one's house, one must ask whether it is worthwhile telling the Garda about it although it is technically a crime.
While I ask all citizens to report all crimes that are reasonably reportable to the Garda and while I acknowledge Deputy Costello's point that there is a discrepancy between reported crime figures and the figures that would represent the true level of crime, the Commissioner can account only for reported crime. The Central Statistics Office can engage in crime surveys to determine the extent to which crime is unreported. That is as much as any Government can do.
Does Deputy Ferris want to comment on that?
Sinn Féin will propose an amendment to section 39(1) in order that it would refer to such statistics provided to regional divisions at district and station levels. We propose to amend subsection 39(2) by inserting, after "Statistics Office", the phrase "at least annually but otherwise at the times and in the manner that the Minister may require".
Question put and agreed to.
SECTION 40.
Question proposed: "That section 40 stand part of the Bill."
Section 40(1) states:
The Garda Commissioner shall keep the Minister fully informed of the following:
(a) matters relating to significant developments concerning—
(i) the preservation of peace and public order in the State,
(ii) the protection of life and property in the State, and
(iii) the protection of the security of the State.
Perhaps it would be no harm to include the phrase "the operation of community policing". It is a new and important area in the work of the Garda. Mentioning it might underline its importance and keep it fresh in the mind of the Garda Commissioner bearing in mind that he must make a report at the end of the year on the operation of community policing.
This is not the provision concerning the annual report. It is imposing a duty on the Garda Commissioner to be upfront with any matters which fit into the listed categories and which should be of interest to the Minister. The provision gives the Minister the right to require specific reports from the Commissioner. It does not pertain to the annual report but makes it clear that, while the Commissioner is operationally independent in many respects under the legislation, the Minister, being accountable to Dáil Éireann and as a member of the Executive, can demand from the Commissioner information that he considers necessary.
Subsection (1) states what the Commissioner must do on an ongoing basis and subsection (2) gives the Minister the power to require a report on any matter connected with policing, the security of the State or the performance of the Commissioner's other functions.
Sinn Féin wants to amend the section on Report Stage by inserting a new subparagraph 40(1)(a)(iv) referring to the state of Garda discipline and compliance with a code of ethics.
Question put and agreed to.
Amendment No. 58 has been ruled out of order because of cost implications for Revenue.
Amendment No. 58 not moved.
Section 41 agreed to.
SECTION 42.
Question proposed: "That section 42 stand part of the Bill."
Section 42 enables the Minister to contribute to the legal costs of a member of the Garda Síochána charged with a criminal offence where it relates to the performance of the member's duties and where the Minister is of the opinion that the member's financial circumstances are such that failure to give such legal aid would create undue hardship. The contribution does not exceed that which would be generally available if a legal aid certificate was available to a member.
The Director of Public Prosecutions institutes proceedings against members of the Garda Síochána. They are in the thick of things and in many other areas people would be indemnified by their employers in similar circumstances. The Garda Representative Association requested that I do this and I have acceded to that request. It is a sensible provision.
Are we talking about a criminal offence?
Yes. Effectively, this is criminal legal aid for members of the Garda Síochána. If a garda is charged with an offence——
The Garda Síochána would press the charges if a garda committed a criminal offence.
Yes, the gardaí would bring the prosecution at the direction of the Director of Public Prosecutions, but if the accused is a garda, the law is currently unsatisfactory in assisting him with his defence.
I see no reason whatsoever to do this when a criminal offence is involved.
If a garda is charged with an offence and it would cause undue financial hardship for that garda to defend himself arising out of the exercise of his duties, this enables the Minister——
He has exceeded his duties in committing a criminal offence.
That is the issue. Before we start we must decide whether he is guilty or innocent. Deputy Murphy assumes he is guilty and, therefore, he does not deserve legal aid to assert his innocence. There is a presumption of innocence, even for gardaí. Sometimes it appears that a member of the Garda Síochána does not have the presumption of innocence that we loudly assert for ourselves.
We are dealing with a garda accused of using excessive force carrying out an arrest. Under our Constitution and law, that garda is presumed innocent. In most cases, if the security man from a certain company was being prosecuted, the company would assist him. It is reasonable that the Minister can contribute to the legal costs of a garda. He is not, however, obliged to do so. If a garda went mad and beat up 100 people and there was clearly no defence, the Minister would not be obliged to start writing out cheques to lawyers to assert that it never happened. This provision enables me to be in the position to grant legal aid to gardaí in cases where they are charged with offences arising from the circumstances in which they were carrying out their duties.
On the other hand, it gives a garda protection that if he uses excessive force in certain circumstances and he is charged with a criminal offence, the State will pay for his defence.
He does not know that because this does not oblige me to do it. If there is a fracas and the DPP takes the view that he will prosecute the layman who attacked a garda, that person gets legal aid as a matter of statutory entitlement. If the DPP is of the view that he will prosecute the garda and the other person will be a witness, I want to be in a position in appropriate cases to give legal assistance to the garda to defend his innocence. Deputy Murphy should take into account the May Day cases, where one garda was convicted and a number were acquitted. The gardaí who were acquitted of those offences, if it were not for this provision, would be liable for their own costs regardless of the hardship that might cause.
The GRA has provided legal aid for its members in many cases and it makes the point that it is difficult for it as a representative association to provide legal aid for members in increasingly complex and lengthy jury trials. I was asked to do this by the representative associations and, in the context of recent cases, I wanted to do so myself. There is provision in one of the Garda regulations for something along these lines but it was not considered satisfactory and in such circumstances, a garda should not be in a worse position than a person who is not a garda charged with a criminal offence.
The Minister for Justice, Equality and Law Reform provides legal aid through his budget for people charged with ordinary criminal offences. I do not want to put gardaí outside the Pale in terms of that provision, nor do I want gardaí going to the District Court and arguing with judges about the cost of senior counsel.
In the May Day cases, a number of gardaí were acquitted of serious offences. They had junior and senior counsel in cases that went on for days in the Circuit Court. If those senior counsel were paid at legal aid rates, it could have cost those gardaí€20,000 to assert their innocence. I do not want to be in a position that after the event, if they are acquitted, I give them the cheque but if they are convicted, they must bear the risk themselves. It is unacceptable to say that to someone whom we send out in difficult circumstances to defend the public interest. Gardaí go out in the middle of drunken mêlées and they may use excessive force on occasion, although we hope they do not. If they do, and they are prosecuted, they should not be in a worse position than the drunks who started the mêlée in the first place who are entitled to legal aid in these cases.
There is nothing wrong with the Minister being in a position — not under a duty — to assist gardaí who find themselves in these circumstances. Having been to court recently, and having a salary greater than most gardaí, I would not like to bear the costs of lengthy criminal litigation arising from the manner in which I was alleged to have carried out my duties. It would not happen to me as a Minister. If someone sues me for making the wrong decision, I do not have to ring my bank manager, I am automatically indemnified.
A garda in a drunken mêlée outside a night club, were it not for this provision, would wonder if he should do his duty or retire because if he is wrongly accused of using excessive force, he will have to pay a massive bill. We should remember whose side the gardaí are on. While they have the presumption of innocence, they should not be left financially exposed.
While they have the presumption of innocence, if that presumption is unwarranted and they are charged with a criminal offence and convicted, there is no provision in section 42 to allow the State to recover costs. There is no provision in section 42 to allow the State to recover costs. It is hard to see any circumstances where a member of the Garda Síochána would qualify for free legal aid because he or she would be a fairly well paid professional person. Section 42(1)(b) provides for the Minister to exercise his or her discretion, based on his or her opinion of the member’s financial circumstances.
Section 41(3)(b), which relates to civil actions or torts, provides for the State to:
recover contribution or seek indemnity from an individual member of the Garda Síochána who is, or who, if sued at the time of the commission of that wrong, would have been, liable in respect of the same damage.
That would apply equally in a situation where, for example, the Department of Justice, Equality and Law Reform hired a security man from ABC security to stand in the hall and repel all boarders, or whatever he was required to do. If he were charged with using excessive force, he would be entitled to apply for legal aid.
Everyone is entitled to apply for legal aid but he or she will be assessed on the basis of his or her means.
I appreciate that. He might or might not receive it depending on his means. Under the terms of section 42(1)(b) I must be satisfied that the “member’s financial circumstances are such that those costs would result in undue hardship”. If this was simply a row in the District Court about whether a garda threw a punch, I might come to the view that the garda could afford to pay €500 to a solicitor to represent him or her. A protracted case, however, of the May Day kind, which will run for weeks, is a different matter. I make no apology for trying to be fair to members of the Garda Síochána.
To return to the analogy of the private security guard in the hall of the Department of Justice, Equality and Law Reform, if he were sued, and I were sued as a joint tortfeasor because I was responsible for his activities, and it emerged that he treated someone badly, I would reserve the right to seek a contribution from him towards any damages awarded to me, if I could recover it. That applies to gardaí too.
I am trying to keep the scales evenly balanced between gardaí and other members of the community without placing the gardaí in a situation of unacceptable risk when I put them in the front line to defend public order. On occasions they must use force to achieve that. I want to be on their side in that situation and its ensuing consequences. I make no apology for doing so and the public would regard this as a fair provision.
I am not providing money for wrongdoers regardless of the circumstances because there is no obligation in the provision. A garda who is a wealthy person in his or her own right and owns three or four houses in Rathmines, as the myth suggests, must bear his or her costs. I can make a contribution in circumstances where these costs would cause undue hardship.
These are people with large mortgages, living in tough circumstances, and to plunge them into a fortnight-long trial with counsel for which they must pay would put them at a disadvantage in comparison with most legally aided defendants in the courts. We must remember on which side our bread is buttered. I stand by gardaí in this matter.
While I understand the Minister's point, the same facility does not exist for other civil servants, for example, officers of the Revenue Commission.
I do not wish to be disrespectful but I have another engagement. The Minister of State at the Department of Justice, Equality and Law Reform, Deputy Brian Lenihan, will take over from me.
That is not a problem. It is a minor issue.
I thank the Minister for being with us this evening. I welcome the Minister of State, Deputy Brian Lenihan.
Would a similar facility be available, for example, for members of the Defence Forces or the Revenue Commission who might face a criminal charge?
In regard to the wording of section 42(1): "The Minister may contribute to the legal costs of a member of the Garda Síochána who is charged", legal costs are usually awarded after the trial. At that stage the member will have either been convicted or acquitted. The formulation of the provision is strange. The Minister did not give a full answer to Deputy Costello about recouping the costs in the event of someone being convicted.
There is no reference to this in the Act. The Minister said there is a facility there to recoup costs. It would be better, and most people would be happier, if a provision were included to the effect that any contribution made by the Minister to the legal costs for a member of the Garda Síochána would be recoverable if the member were convicted of a criminal offence. The wording is strange because the legal costs are awarded at the end of a trial after someone has been convicted or acquitted, by which time the person is no longer charged.
Many members of the community who obtain legal aid are convicted but the legal aid costs are not recouped from them. We are not putting the Garda Síochána in any——
That applies only when the person's means have been determined and whether it is appropriate that he or she receive legal aid.
The Minister must make——
Under the Act, the decision rests on the Minister's opinion.
Deputy Costello should allow the Minister of State reply.
Deputy Costello is making a fair point. The Minister must make a similar statutory determination here. He must be of opinion that the "member's financial circumstances are such that those costs would result in undue hardship". As the Minister said, he is trying to put the Garda Síochána on the same footing as the rest of the community.
Deputy Ó Snodaigh raised a fair point about the position of officers of the Revenue Commission or members of the Defence Forces who do not have such a facility. From a practical point of view the position of members of the Defence Forces is not analogous to that of members of the Garda Síochána. A member of the Defence Forces is under the command and direction of a superior officer and ultimately of general headquarters and the relevant commanding officer. Therefore, the amount of independent discretion available to a member of the Defence Forces in respect of any particular decision is limited.
The Garda Síochána, by contrast, has various discretions in the exercise of its powers under a wide range of legislation. There is no practical equivalence between members of the Defence Forces and members of the Garda Síochána in this context although the Deputy's theoretical point stands. I am prepared to examine the question in regard to officers of the Revenue Commission. The Minister has considered the position of the Garda Síochána for which he is responsible and believes he has struck a fair balance.
Has the State not paid in all cases for the various civil and criminal actions taken by members of the public against members of the Garda Síochána? This does not apply in the Morris tribunal.
In civil actions, where a member of the public takes an action against a member of the Garda Síochána for having exceeded his or her duty by way of an assault or whatever, does the State or the Garda Representative Association pay? Who pays when the courts award compensation to a citizen? My understanding was that most cases are dealt with and drawn out up to the door of the courts where they are settled. The settlement is one into which the State enters, rather than the member of the Garda Síochána or the Garda Representative Association. That would give the lie to the Minister exercising discretion to the members' financial circumstances and avoiding undue hardship. There is a comprehensive system in operation already that covers individual members.
I understand that the Garda Representative Association undertakes to pay the legal costs of its members when they are before the courts. It would be the Association of Garda Sergeants and Inspectors in the cases of higher ranks. The associations stand ready, able and willing to indemnify the costs which a member has incurred in proceedings. The position is somewhat more complex with damages. The proceedings are rarely instituted solely and exclusively against an individual member of the force. The State is normally joined as a party in the proceedings when the conduct of a member of the Garda is an issue. The State is a necessary party to the litigation along with the individual member. If the State settles the case, it must pay the damages and the taxed costs of the plaintiff seeking the damages.
That happens in all cases.
I assume this would be the general practice because of the nature of the proceedings.
That is in 100% of cases.
The member has the assurance——
The State is joined and automatically picks up the tab.
The Deputy is outlining the position of a civil case. Section 41 states——
In section 41 there is scope for recoupment.
There is.
While section 42, covering more serious cases, has no scope for recoupment.
The problem in section 42 is that the context is criminal proceedings. Section 41 covers civil proceedings.
To the layman it looks more serious.
The position under section 42 is the Garda Representative Association stands willing and able to indemnify the legal costs of the member. The function of a criminal court is not to award damages or costs against a party. It is only in rare circumstances that a court exercising criminal jurisdiction exercises a discretion to award costs against a particular party. Essentially, section 42 provides that the Minister may, subject to the other requirements of the section being met, contribute to, not pay, the legal costs of a member of the Garda if the Minister is of the opinion that the member's financial circumstances are such that the costs would result in undue hardship.
The section states the Minister may agree to contribute. However, the Minister will be agreeing to a matter that has not been determined because the legal costs are decided after the proceedings. If the terms used were "indicated a willingness" or "agree to contribute", then in the eventuality of somebody being found not guilty, no payment would be necessary. However, in the case of someone found guilty, the Minister would already have agreed to pay.
As a former member of the legal profession, I shudder to reply to the Deputy's question. I am sure the Minister and I would agree that it would be difficult to secure effective legal representation on a promise of fees after the event. This is the problem the Minister is faced with in drafting this section.
No one would be opposed to any member of the Garda in financial hardship receiving some financial support from the Minister if he or she deems it is required. However, the provision does not contain a description of the nature of the offence. What if a member is facing proceedings for a criminal offence such as a vicious attack? A subsection should be inserted reserving the right of the Minister to recoup the State moneys that have been spent once the result of the proceedings has been determined.
I have no doubt we would have overwhelming public support were we to propose that this facility should be available in all cases of criminal legal aid. It would be a popular political proposition if in all cases where persons convicted, having received legal aid, the State, the Director of Public Prosecutions, the Minister and appropriate parties would be entitled to have recourse to the courts to recoup the amount of the legal aid made available. However, we cannot have one rule for the Garda and another for the community.
That is what we have here.
On the contrary, we are putting the member of the Garda in the same position as the rest of the community.
We do not need this section in that case.
A member, if convicted, will lose his or her position in the force and may well serve a period of imprisonment. From what the Deputy proposes, a member may face the possibility of proceedings to have him or her declared a bankrupt for failure to disclose the legal costs incurred.
In the case of an individual in a position of such power as a member of the Garda whose function is to uphold the law, there is this blanket statement that the Minister may take care of that person's legal costs. On the tort side, the State has picked up the tab in 100% of cases even though it is a discretionary matter. While the State need not do it, it has because it is joined in it. In this case, the outcome could be the same. The message would go out to gardaí that the State is there to back them up in civil and criminal actions. That is not the best message to be sending out. I am not suggesting gardaí would abuse the provision. However, we should be careful what is put into law.
I agree to some extent with the Deputy's view that the Minister would have to exercise this particular discretion very sparingly. There is a fundamental distinction between section 41 and section 42. They are not part of a comprehensive code of protection for the Garda because the contexts are different. Section 41 covers cases where the State is also necessarily named as a party in a civil action in a private dispute between a member of the public and a member the Garda. Section 42 is a different context where a person is in jeopardy of his or her liberty and fortune because of criminal allegations made against him or her that must be determined by the courts. It is important to note that the financial exposure of the State in this matter is much greater in the civil proceedings than in the criminal proceedings. The exposure of the reputation and good worth of the Garda Síochána is at greater stake in criminal proceedings but the financial interest of the State is much more exposed under section 41 in a matter of civil liability where, because of the joint responsibility or possible joint responsibility of the State in matters other than flagrant acts, the State is exposed.
We are protected under section 41 in the sense that an indemnity can be sought. A more interesting exploration of this problem would be in that area rather than in the context of section 42 where the penalty is a penal sanction on the Garda member found guilty of an offence.
The Minister of State might let us know the number of times indemnity has been sought. It would be interesting to get that figure.
We have passed from section 41, but that would be a more fruitful line of inquiry in this context.
Question put and agreed to.
SECTION 43.
Question proposed: "That section 43 stand part of the Bill."
With regard to section 43(1)(d), “reduction in pay not exceeding 4 weeks’ pay”, why is a period of four weeks specified?
The sanction referred to in paragraph (c) is a reduction in rank and that in paragraph (d) is a reduction in pay not exceeding four weeks’ pay. When one begins to extend the period of the pay reduction, in substance one reduces the rank. I assume that is the reason given the sequence of the sanctions as detailed. It is the existing regulation governing the matter.
Question put and agreed to.
SECTION 44.
Amendment No. 59 is out of order.
Amendment No. 59 not moved.
Question proposed: "That section 44 stand part of the Bill."
A number of issues arise here. Regarding section 44(1) which states, "Subject to subsection(3)”, the phrase, “subject to the approval of the Houses of the Oireachtas”, should also be inserted. I also suggest a number of other amendments. In section 44(2)(a), “subject to the agreement of the Government” should read “subject to the Houses of the Oireachtas”. In section 44(2)(b), “the Minister” should be amended to “the Houses of the Oireachtas”. We are dealing with international Garda service in this case and the Houses of the Oireachtas should have a greater role and duty in determining how the duties of the Garda Síochána are assigned outside this State. That is not to say we should interfere in the day-to-day determinations of the Garda Commissioner, but Members should have a more specific role in all this.
We have been called for a vote in the Dáil Chamber. I propose that we adjourn the meeting and return to consideration of section 44 next week. I thank the Minister of State and his officials for attending. The next meeting of the select committee will be on Tuesday, 24 May, at 2.30 p.m., to consider the annual Estimates for the Department of Defence.
Progress reported; Committee to sit again.
The select committee adjourned at 8.35 p.m. until 2.30 p.m. on Tuesday, 24 May 2005.