My question arises from North-South matters. I have advocated including a provision that would allow teachers with reckonable service in the South who then teach in Northern Ireland to combine both periods of service for pension purposes. The same arrangement should apply to everyone in the public service. If a member of the Garda Síochána serves abroad or in Northern Ireland, he or she should be able to add these periods of service to his or her periods of service here for pension purposes. In spite of our aspirations about North-South co-operation, it appears to be impossible to secure agreement when it comes down to practical matters like pensions. The obstacles to agreement might be as much on our side of the Border as on the northern side. I appreciate that there is a problem concerning the amendment. I gather it has been ruled out of order because it could be a drain on the Exchequer.
Is Deputy O'Keeffe speaking to the section?
I am speaking to the section. This matter should be examined, particularly on a North-South basis. Arrangements should be made to facilitate any member of the Garda Síochána who goes abroad on UN service or leave of absence to another country. My particular emphasis is on arrangements between the Garda Síochána and the PSNI.
Could the Minister of State give us an idea of the number of gardaí serving abroad? From time to time, we see media coverage of Irish police officers involved in various missions around the world. It would be useful to find out how many gardaí are serving abroad and what the existing mechanism for secondment is. Is it carried out purely under the auspices of the UN? Is it for a fixed period of time? What sort of conditions and payment are involved? Is payment made directly here? Are gardaí seconded and paid their normal salary? What are the arrangements regarding pensions? Is service abroad regarded as reckonable service for pension purposes? It would be useful to get a picture of what the situation is to date and whether, arising out of this Bill, it is intended to facilitate further the sending of gardaí to Europol and other international organisations.
Where a member of the Garda Síochána is stationed overseas in his or her capacity as a member, for example, with Interpol, he or she receives an allowance for this overseas service and accrues service and pension entitlements as normal. Where a member opts to leave the Garda to serve abroad with another agency, such as the UN, he or she ceases to be a member of the Garda and must rejoin the force on the termination of that overseas service. In this case, the member does not accrue service and pension entitlements. These matters are well understood within the force and any question of a change in the position would first arise for the relevant representative body.
What about Europol?
Section 47, which we will deal with shortly, addresses Deputy Jim O'Keeffe's question on secondment to Northern Ireland and makes clear in its third subsection that, during the secondment, the member continues to be paid as a member of the Garda Síochána although he or she is not under the direction of the Commissioner. Section 47(3)(b) deems the service to be service for “pension, promotion and seniority purposes”. There is no interruption in service for a member of the Garda Síochána during secondment in Northern Ireland. The general position in regard to overseas bodies depends on whether the member has resigned or not.
What would happen if the member went to Europol?
The position on Interpol at present——
Europol.
Sorry. Europol will be the same as Interpol and members will continue to accrue service.
Would the service outside the State be a secondment in the same fashion as that to Northern Ireland?
Yes.
How does this relate to the United Nations? People who are on UN service cease their employment in this jurisdiction to take up employment on a particular UN mission. Is this a career break? It is not a secondment. What impact has this period if, having completed it, the people return to the rank and position they were in beforehand, for which I presume there are arrangements?
Technically, their services are broken by participation in the United Nations.
Should the legislation not address this issue? The United Nations is the premier body we recognise for secondment services.
Members of the force understand the situation well. The relevant representative body must take the matter up with us in the course of our discussions.
There is no statutory basis for it.
There does not appear to be a statutory basis. This is essentially a practice wherein there is a technical resignation and a technical readmission to the force.
If there is no statutory basis for this, what happens to the pension entitlements? Do the individuals lose their entitlements for the duration? Is there a break in their services?
There is a break.
What is the impact in terms of their seniority and payments later in life? Does this affect the age at which they can retire or the length of service required of them?
The conditions of service in the United Nations are very attractive, which is why this issue has not been raised with us.
The duration is quite short.
This is a very attractive arrangement for the duration but, at present, it is done on the basis that the person is technically not a member of the force while with the United Nations.
I will return to the Northern Ireland matter as it interests me. I have been pressing the issue of transferability of pension entitlements for all public services between North and South. The coalface of the practical level is what confronts many people in regard to a united Ireland. Under section 45, there can be an appointment of a member of the PSNI to certain ranks in the Garda Síochána and a secondment from the PSNI. Section 46 addresses the secondment of gardaí to the PSNI. Regarding the point that the members' service should be regarded as service with the Garda Síochána, it would appear under section 47 to apply only to a secondment, which would only arise under an arrangement between the Garda Commissioner and the Chief Constable. If there is an open competition for a position in Northern Ireland and a member of the Garda Síochána applies for it, the person resigns as a member of the Garda Síochána upon gaining the position and joins the PSNI. This is the crunch issue, an arrangement whereby we can add periods of service via a transferability between North and South.
I have raised this matter with the Minister for Finance and others for some years. A working group is discussing this but the matter has not been resolved. This will affect members of the police force. I hope we will see exchanges between the PSNI and the Garda Síochána but such an issue will be an obstacle here and elsewhere throughout the public services. I began to ask these questions in the context of some teachers who told me how they had been teaching here, transferred to Northern Ireland but now find there is no transferability of pensions between the two jurisdictions. The same problem may be an obstacle to gardaí and members of the PSNI.
The Deputy is referring to lateral entry, whereby a member of the Garda Síochána seeks to join afresh the PSNI and participates in an open competition on the same basis as everyone else. The Deputy is correct that a committee is examining this issue. Many difficult issues are involved but we are determined to address them through the work of the committee in question to bring detailed proposals forward in the form of regulations.
I would like at official level to have the committee informed that this additional dimension must be dealt with. If we are to have transferability between both jurisdictions, this type of practical issue is the stumbling block to a new approach. On that basis I will not press the issue further.
In addition to the lateral entry point identified by the Deputy, the committee is also examining the issue of the accumulation of entitlements where there is an appointment under section 45 of our legislation of a member of the PSNI to a rank in the Garda Síochána or the converse situation, which is outlined in the Northern Ireland legislation. The need to mutualise the PSNI's entitlements is even more intense when a person sees an advertisement in a newspaper and decides to change police forces. Where there is an expressed legislative basis for these appointments from within the existing force, we must address the issue of transferability of pensions. This issue would be germane to the operability of section 45 here and the equivalent Northern Ireland legislative provision.
I will be happy as long as the matter is addressed.
What number of gardaí serve in any type of service outside this jurisdiction? The Minister of State said that the United Nations is not covered by section 44, of which I was not aware. What arrangements have been made for payments and entitlements in respect of police forces other than Northern Ireland's, whether in our neighbouring jurisdiction of Britain, in Europe, Interpol, Europol or the United States?
The Minister has made clear his intention to introduce an amendment on Report Stage dealing with this issue.
Is this an amendment to section 44?
It will facilitate entry to the Garda Síochána of persons serving in police forces in other common law jurisdictions.
That deals with people transferring from police forces in other jurisdictions to the Garda Síochána but what about those transferring from the Garda Síochána to forces in other jurisdictions?
That would have to be negotiated and agreed on a reciprocal basis with the relevant state. If the Minister takes the necessary powers, which he has signalled his intention to do, a framework can be provided for such negotiations to take place.
We are silent on this matter here, whereas we prescribe for it in Northern Ireland.
We are going to take powers to deal with this issue. The Minister has signalled this intention.
The amendment will cover both our people serving abroad and others serving here.
By definition it would have to provide a framework for the State to enter into relations with other states on this subject.
An amendment will be proposed on Report Stage. My other question is whether we have any idea of the number of gardaí serving throughout the world, including those in the UN and Northern Ireland. Could this be provided on Report Stage?
Perhaps these figures could be provided for Deputy Costello.
The Bill states "The Government may appoint members of the Police Service of Northern Ireland to such ranks in the Garda Síochána not below superintendent as may be prescribed." In section 45(3) and (4) it says that in determining the eligibility of a member of the PSNI to apply for appointment to a rank of the Garda Síochána, such a member shall compete in a merit-based selection procedure with other applicants for appointment. Does that mean that someone of a particular rank in the PSNI is not guaranteed to transfer to a similar rank? Is the person guaranteed that he or she will be selected, or is there no guarantee that he or she will be selected to be a member of the Garda Síochána? To what does the term "rank" refer? Does it refer to the rank obtained in the previous police force or to any rank in the Garda Síochána? Could some applicants be excluded entirely from the transfer process? Does it mean that there is an entitlement to the equivalent rank, but that there will be a merit-based selection process?
Perhaps this is to ensure that gardaí do not have their nose out of joint.
Perhaps that is the case, but there does not seem to be a reciprocal process when gardaí transfer to the other side. They will not benefit from a merit-based selection process.
: These provisions were contained in the Garda Síochána (Police Co-operation) Act 2003 and are being re-enacted here for ease of reference. Section 116 of the Act allows the Minister to draw up regulations but the point raised by Deputy Costello relates to the specific statutory regulation in section 45(4). The rank structures in the two forces are not identical but there is a similarity. I cannot say I am familiar with the rank structure of the police service of Northern Ireland. If a member at the rank of constable sought to be a member of the Garda Síochána, there is no merit-based selection procedure to become a garda. If, for example, a constable from the PSNI wanted to become a sergeant in the Garda Síochána, a sergeant in the PSNI wanted to become an inspector or someone of the PSNI rank just below the equivalent of Garda superintendent wanted to become a Garda superintendent, then section 45(4) would come into operation. That is my interpretation of the subsection.
Under section 116 the Minister draws up regulations specifying the ranks that members of the PSNI must hold to be eligible for appointment under section 45 to specified ranks of the Garda Síochána. The Minister must bring that before the House.
Is it not the case that it is intended for ranks that are not below superintendent?
That is correct. I should not have given the superintendent example. It would apply to sergeants and inspectors, but not to superintendents.
Why is there one section that refers to appointment from superintendent upwards and another section that refers to secondment only for lower ranks? Why are there two different approaches, one referring to appointment and another to secondment in section 46? Is it that the Government must appoint people above a certain rank? Does secondment only apply to the ranks not below superintendent? I thought that might be why section 45 deals with appointment of ranks of superintendent and above.
Secondment does not have to be merit-based.
Why is there a distinction in the way secondment operates? Is there no process for seconding a superintendent for a period of three years?
Am I to take it that section 45 refers to full-time appointments?
I misstated the matter and misled the Chair a moment ago. In fact the reverse is the case. Section 45 deals with appointments from superintendent level and upwards. The example I gave was misleading as I spoke of sergeants and inspectors. In fact the appointment would be of superintendent, and in any such appointments a merit-based selection procedure may well be involved. The Government makes the appointment under section 45. In answer to the query on section 46, anyone can be appointed at any level when seconded because the Garda Commissioner can appoint anyone up to the rank of inspector.
He would have to request the Government to make the appointment.
Yes. I misled the Deputy by giving the example of the sergeant and inspector under section 45 when it would not apply to those appointments.
Section 45 refers to appointments from the PSNI to the Garda Síochána above the rank of superintendent. I presume these are full-time appointments.
It refers to positions at the rank of superintendent and above rather than what the Deputy said.
Yes, not below that rank. We are talking about people applying to join the Garda Síochána from the PSNI at a high level. In section 45(3) it is stated that we can take into consideration their rank, experience and qualifications that would be required for appointment to equivalent rank. Nevertheless, the person can only be successful if he or she competes with the other applicants. Presumably these other applicants are sergeants and inspectors within the Garda Síochána. There is no mechanism of transfer from one rank in the PSNI to a similar rank in the Garda Síochána, without going through a selection process.
That is only the case for the rank of superintendent and above. Below that rank, that is at the rank of inspector, the transfer mechanism exists.
In this section they must go through a selection process. It seems strange to expect anyone to apply in those circumstances. Why would one apply if everyone else will compete with one?
One would do so for career development.
I would have thought the purpose of it would be to allow the Garda Síochána headhunt somebody in the PSNI with particular experience at the rank of superintendent or chief superintendent.
A merit-based selection process is used at the level of superintendent in the Garda Síochána. The decision goes to the Government and the practice in recent times is that the Government approves the results of the selection procedure.
That is interesting. New people from Northern Ireland will be selected on merit but those from the South will be appointed by the Government.
No. Section 46 would be used where a person wishes to transfer across from an existing rank while section 45 would apply in the case of a promotion.
Are other ranks excluded from appointment? Taking sections 45 and 46 together, it is now clear that under section 46, the Garda Commissioner may appoint somebody up to the rank of inspector on secondment or request the Government to appoint at a higher rank.
Section 45 appears to be confined to the appointment of somebody from the PSNI not below the rank of superintendent but there does not seem to be provision for the appointment by the Commissioner if he so desires. If the Commissioner wished to appoint a hotshot detective, inspector or sergeant dealing with the Criminal Assets Bureau or its Northern equivalent but it was not appropriate to appoint him or her as a superintendent immediately, would the Commissioner be precluded from so doing?
The intention and purpose of section 45 is appointments by way of promotion. An appointment by way of promotion gives the right to the PSNI member to participate in the merit-based selection procedure. The person at the equivalent level of inspector in the PSNI can apply through the selection-based procedure for appointment as superintendent.
Section 46 allows for appointment at the appropriate rank. Going back to my original example of a constable which I mistakenly gave——
That deals with secondment rather than appointment.
It states it is for not more than three years.
Section 45 is about permanent promotion so that people from the Police Service of Northern Ireland can apply for promotion within the Garda Síochána but they must follow the normal process. It is not secondment, it is a promotion.
The only lacuna I see is that somebody below the rank of superintendent cannot be brought in. Can we provide for a situation where somebody young with specialist skills who has not yet been promoted through the ranks may be required?
I will have this examined before Report Stage. This section re-enacts legislation already in force, relating to an international agreement we have with the United Kingdom. The question raised by Deputy O'Keeffe is fair. Can the period of secondment be extended after three years or can a seconded person become a member of the Garda Síochána? At that stage a person could take the sergeant or inspector exam as appropriate. That is the issue arising from this discussion.
My apologies, I missed out on section 44 and wish to give notice of Report Stage amendments to be tabled on that section. I propose that an assignment made under section 44(1) be subject to approval by the Houses of the Oireachtas. I also propose the following amendments:
In section 44(2)(a) to replace the word “Government” with “Houses of the Oireachtas”
and:
In section 44(2)(b) replace the word “Minister” with “Houses of the Oireachtas”.
Deputy Ferris is discussing Report Stage amendments on section 44.
Yes. I propose a new section 44(4):
A member shall not be deemed eligible under this section if he or she has not received proper training or is under investigation or other pending offences against a member or that the member has been disciplined for serious breach of code of conduct including code of ethics.
I propose a new section 45:
Enactment subject to conditions
(1) This act shall only come into effect after such time as the Oversight Commissioner has made a statement confirming that the recommendation on the report of the independent commission on policing for Northern Ireland, also known as the Patten recommendation, has been fully implemented and that the Minister has laid the declaration before each House of the Oireachtas to this effect.
(2) At such time that this condition has been fulfilled sections 41 to 45, inclusive, shall not come into operation until such day as the Minister may appoint by order.
(3) An order under subsection (2) shall be laid by the Minister before the Houses of the Oireachtas.
On the basis that the Minister of State will return with further information, the question is proposed that section 45 stand part of the Bill.
Section 46 is silent on the issue raised by Deputy Jim O'Keeffe regarding payments and pensions. Section 47 is clear about this. There is no indication on how members of the PSNI will be paid, whereas section 47 states that each member of the Garda Síochána will be paid as a member of the Garda Síochána while he or she serves in Northern Ireland. Even though the Bill prescribes that each member of the PSNI will have the same powers, immunities, privileges and duties as a member of the Garda Síochána, there is no reference as to whether there will be a difference in payment. Does a great disparity exist between the two forces? What are the salary rates of the forces? Could this become a bone of contention in the future?
All these matters were agreed with the United Kingdom. These sections rest on an international agreement where all matters were resolved between the two Governments. There is no provision in this legislation for pensions or accrual of service of PSNI personnel seconded to certain ranks in the Garda Síochána. That is a matter for the Northern Ireland Legislature.
It is relevant because they will serve in the Republic side by side with colleagues in the Garda Síochána.
They are paid as members of the Garda Síochána. They receive the same rates of pay. That does not change.
Is the Minister of State correct on that point? Section 47 asserts that a member of the Garda Síochána shall continue to be paid as a member of that organisation, but there is no such reference in section 46.
That is for Northern Ireland legislation. That is legislated for in the equivalent——
I am simply asking if they will be paid the salary of the Garda Síochána or that of the Police Service of Northern Ireland.
They will be paid the Police Service of Northern Ireland salary. That is the arrangement.
I want to insert a new section at the end of section 47, that human rights qualifications and misconduct screening be a prerequisite to all appointments and secondments. All appointments under section 45 and secondments under sections 46 and 47 shall be subject to human rights qualifications and screening for misconduct. No officer shall be deemed eligible for an appointment under section 45 or a secondment under sections 46 and 47 unless that officer has completed approved human rights training within his or her own service. Notwithstanding a determination of eligibility under section 45(3), no officer shall be deemed eligible for an appointment under section 48 or a secondment under sections 46 and 47 if she or he is the subject of an investigation or inquiry, whether internal or otherwise.
The Deputy is flagging a potential amendment on Report Stage.
That will be dealt with on Report Stage. The amendment is not being moved now. Is that correct?
That is correct.
Deputy Ferris had better be careful. He may end up recognising the Police Service of Northern Ireland by moving an amendment such as the one he has just flagged.
I assure the Minister of State that once a proper police force is in place, I will have no problem recognising it. That is a matter for his Government, the British Government and everybody else.
The situation is that there are members of the Garda Síochána seconded to the Police Service of Northern Ireland. There are gardaí there and members of the PSNI have been transferred down here.
That may well be the case, but more accountability within the Garda Síochána would be appropriate also.
Why is the breach of discipline dealt with on the expiry or termination of the period of secondment? In practical terms what is anticipated here? My reading of this section is that if an individual is facing a disciplinary charge while serving with the PSNI, he or she will stay on secondment until the charge is dealt with under PSNI procedures and then the secondment will be terminated. Is that correct?
This is part of the agreement with the UK about secondment and appointment of PSNI members in this jurisdiction and of members of the Garda Síochána in Northern Ireland. It is envisaged that when the person returns to the jurisdiction, he or she will be dealt with at that stage. The secondment is over at that point and the Garda Commissioner can deal with the individual. There is a provision for the termination of the secondment which would facilitate the instigation of the disciplinary procedure in the appropriate jurisdiction.
The secondment can be terminated before the three-year period has passed if there is good cause. Is that correct?
Yes.
Is this disciplinary procedure separate from the normal one for a member of the Garda Síochána?
No. The international arrangement is that the person is assimilated back into his or her own disciplinary arrangement. That is what is envisaged in the intergovernmental agreement.
There may be a better way of expressing it, namely, that the same disciplinary arrangements apply. Why restate the point here?
We must make this provision because the breach of discipline took place in another jurisdiction. We must expressly provide for the disciplinary proceedings in this jurisdiction on the termination of the secondment.
Will it be the inspectorate in Northern Ireland or in the Republic that examines the disciplinary matter? If, for example, a member of the PSNI is seconded to this jurisdiction and then returns to Northern Ireland, the matter of discipline would be investigated in the Republic but the individual would be subject to disciplinary procedures in Northern Ireland. Would the Police Ombudsman of Northern Ireland examine the matter or the inspectorate in the Republic?
The disciplinary regulations are set apart from the Ombudsman and the inspectorate, as I understand it. In Northern Ireland, the Ombudsman is the disciplinary authority.
Would she be able to come to the Republic and question people about an alleged breach of discipline by the member of the PSNI?
It would be very difficult to keep her out of the investigation if the breach took place in her jurisdiction.
She might be more comfortable in the Republic.
If the breach of discipline took place in her jurisdiction, she would feel entitled to examine it, even if it was by a member of the Garda Síochána.
It might be done on an agency basis.
Possibly.
The matter is dealt with here and the file is then transmitted to Northern Ireland. That is the procedure that will be followed.
This section relates to a breach of discipline by someone from the PSNI seconded to the Garda Síochána. The wording is clumsy. To what does "Subject to subsections (2) to (5)” refer? There are only four subsections in this section of the Bill. I presume “Part 4” refers to Part 4 of the Bill, which is from section 74 onwards. I do not understand the references to subsections (2) to (5). Of what section are they subsections? There are only four subsections in the section we are dealing with now.
I hereby signal my intention to propose an amendment on Report Stage to correct the references to subsections (2) to (5).
It was very perceptive of Deputy Jim O'Keeffe to notice that error.
I have been reading such documents all my life. We are now dealing with subsections (2) to (4) of this section. Is that correct?
Yes. I thank the Deputy. I did not understand his point initially, but in fact he was addressing an issue that we must deal with on Report Stage.
This refers to records of members of the Garda Síochána serving outside the State.
I can understand the need for this provision where it relates to a death of a member, but I do not understand the requirement for it as it relates to a birth.
Why is the consent of the Minister for Health and Children required?
This section refers to the birth or death of a child of the member of the Garda Síochána.
I still do not understand the purpose of this provision.
It allows an Irish birth certificate to be issued in respect of a child of a member. That is the effect of the provision.
Would that not take place automatically? The birth would have to be recorded. The section merely provides "for the keeping of a record".
Is any provision made for children's allowance?
The purpose of section 50 is to enable the Minister to retain in Ireland records of these events which concern gardaí outside the country.
: These are events which may take place outside Ireland.
Normally a person born outside Northern Ireland may only obtain a birth certificate there. This section enables a member of the Garda to obtain an Irish birth or death certificate regardless of whether he or she is based in Northern Ireland or abroad when the event took place.
Surely the Department of Health and Children rather than the Department of Justice, Equality and Law Reform would keep the relevant records.
That is correct.
It does not say that. All that is required is the consent of the Minister for Health and Children.
Section 50(2)(b) envisages the transmission to the Registrar General of the relevant facts in such manner as may be specified in the regulations. The following section provides specifically for the duties of the Registrar General in regard to the records transmitted under the legislation.
Why is specific reference made to the recording of the birth but not the death of a child?
Paragraph (b) envisages that the Minister may by regulation provide for that in terms of “the member’s spouse or of such other relatives as may be specified in the regulations”.
They are included under the umbrella heading of paragraph (b).
The regulations enable the Minister to provide for such a circumstance.
That would be provided for under subsection (1)(b)
If the child then died, under subsection (1)(b) power is given to the Minister to provide for a death certificate in respect of the child to be issued by the Registrar General.
There will be separate registration books for births and deaths. What is the current situation? Are there already such books?
The current situation is covered by the Garda Síochána Act 1989. I wish to give notice of a technical amendment which we will have to make to the fourth subsection. The phrase "within the meaning of those Acts" should be deleted from the fourth subsection. I will address this on Report Stage.
This covers all Garda personnel serving abroad. Does it cover United Nations service?
It does. It was introduced for that reason.
Is it at present covered under the 1989 Act?
It is.
Are we still operating under the Births and Deaths Registration Act (Ireland) 1880?
: No, that is one of the issues we must examine on Report Stage.
It is only 125 years old.
It is growing a bit long in the tooth. From the point of view of updating legislation, we have the Civil Registration Act 2004.
It appears that this section is required notwithstanding the enactment of the 2004 Act.
I move amendment No. 60:
In page 36, after line 48, to insert the following subsection:
"(3) This section shall not apply to a trade union or representative body which has acted in accord with agreed dispute resolution guidelines.".
We are now discussing disaffection.
We could not have that.
I am not in favour of disaffection in the force, which is generally upstanding and represented by a number of good bodies. Recently, I had the pleasure of visiting Deputy Ferris's county to attend the GRA's annual conference. I am somewhat concerned about the broad nature of section 52. I am not in the main in favour of strikes or outbreaks of the blue 'flu in the Garda Síochána but I am concerned that limits may be put on actions of representative bodies which might ensue in their coming into conflict with this section. I do not wish to see representative bodies which act in accordance with agreed dispute resolution guidelines running into trouble or being accused of fomenting disaffection under section 52.
The Constitution recognises the right to freedom of association. There is this right on the part of the Garda within representative bodies. Public policy considerations lie behind the refusal to extend the right to strike. Does this section contain the correct balance? I raise this question for debate rather than to encourage that provision be made for the right to strike or its equivalent on the part of the Garda Síochána. All representative bodies must, even if only verbally, flex their muscles on occasion. They try to achieve the best deal possible for members in terms of pay and conditions as well as safety and security. I am concerned that by imposing a statutory ban of this broad nature without the type of amendment I propose, legitimate activities of representative bodies would be limited.
I support Deputy Jim O'Keeffe in this matter and I am delighted to note his concern for the rights and principles of trade union representation.
The real Fine Gael is ready for Government.
The pact approaches ever closer.
The two parties are pulling together on anti-social behaviour orders and on this matter.
We are proposing methods to address anti-social behaviour. We do not respond to headlines from the Minister for Justice, Equality and Law Reform.
At issue is the stark fashion by which the section penalises anybody who may withhold his or her service. A question arises on trade union rights being given to the Garda. I favour that they are so given because gardaí should have the same entitlements as anybody else to engage in industrial relations and argue their case for pay and conditions at the appropriate partnership forum. They are at present prohibited from doing so and lose out as a result. They are not at the table.
To impose a penalty involving not only a fine but also a period of imprisonment for any Garda member who engages in an industrial relations exercise involving any form of strike or withholding of service sends a negative message. The penalty upon indictment is €50,000 or five years' imprisonment. What is the intention of this? It is provocative and tells gardaí that they are second class citizens if they stand up for their pay and conditions through the normal industrial relations method which is accessible by every other citizen. This needs to be re-examined. It is one matter to prohibit gardaí from possessing the full rights of normal trade unionists. It is another to penalise any who seek to exercise those rights which are upheld in the Constitution. The Minister of State has — as in other sections — gone over the top in respect of this section.
The Minister's view is that this amendment goes way beyond the policy and provisions of the Bill and of the representative machinery which is provided for in it in respect of the Garda Síochána. When this amendment was proposed in the Seanad, the Minister asked Senators to look carefully at the report of the Morris tribunal. I urge Deputies to do the same. It is clear from Mr. Justice Morris's report that members of the Garda Síochána are not simply employees. This is not a service industry where the public are customers. The position is quite different. We have a disciplined force that is absolutely fundamental to the executive power of the State and to the existence of the Constitution. With that in mind, we cannot have a situation where someone could, in effect, organise a mutiny in the Garda Síochána and where the State would stand helpless in the face of such behaviour.
Mr. Justice Morris pointed out that the Garda Síochána is a central pillar of the State. It must operate as a disciplined force. The proper functioning of such a force cannot be reduced solely to an industrial relations process. There are occasions when superior officers have to be able to seek an immediate explanation. It cannot be a matter of negotiation as to whether they will be informed of facts or given explanations to which they are entitled. A disciplined force cannot function in that way. A police force is distinguishable from, for example, a fire or an ambulance service, which are equally vital parts of our State. However, there is one distinction in that, as Deputies are aware, there is unionisation in the fire and ambulance services. In the ultimate circumstances we can call on that other disciplined arm of the State,Óglaigh na hÉireann, to provide these particular services, as required, in the event of an industrial relations dispute.
The range and complexity of the tasks performed by the Garda Síochána could not be performed by any other substitute agency which the State can command. Hence it is essential for the State that we have that disciplined arrangement in regard to the Garda Síochána. Representative machinery is provided for in the legislation and that is as far as we can go. While unionisation can and does happen in the fire and ambulance services, we cannot cross that line in regard to the Garda Síochána.
That is not what Mr. Justice Morris was talking about. He was not talking about industrial relations or withholding services. He was talking about somebody who breached the rules of the Garda Síochána. The Minister of State has mixed up the two issues to give the impression that this has arisen out of the Morris report. It has not. Certain gardaí refused to co-operate with the inquiry. This has nothing to do with withholding services in the Morris tribunal. Mr. Justice Morris said a garda has an additional duty and that the position is not the same as that under a normal procedure where he or she would consult with the Garda Representative Association. Gardaí have an immediate responsibility to answer and give an explanation if disciplinary rules are breached. Mr. Justice Morris did not refer to pay, conditions and rights of service. The Minister of State is mixing up the two issues.
I am not mixing up anything. I am referring to Mr. Justice Morris's report——
Mr. Justice Morris wanted to make it very clear that a member of the Garda, in carrying out his her duties, has a duty to respond where there is an alleged breach of discipline. This relates to the Garda in Donegal. Mr. Justice Morris made no reference — good, bad or indifferent — to conditions of service or industrial relations in that regard. The Minister of State, by imposing this hefty penalty, is making breaches of a garda's statutory duty in respect of disciplinary matters part and parcel of industrial relations. In doing so, he will not improve the position.
I never suggested that I was referring to Mr. Justice Morris endorsing this particular section.
The Minister of State was referring to him.
I was not. I never suggested that. I simply asked Deputies to look at what Mr. Justice Morris said about the Garda Síochána in his report which is very important and his characterisation of the nature of the duties performed by the force. I am quoting his report to show that this is a unique institution in our political system and that it cannot be subjected to normal industrial relations procedures. There must, in the interests of the State, be an element of command and control. That is all I was saying.
I understand the basic approach, namely, that there must be an element of command and control. My amendment was not designed to remove that. I was trying to find what I thought was the right balance. Section 52 covers not just a person who withholds his or her services or commits a breach of discipline and may be fined only €50 but also a person who has committed a criminal office offence, conviction for which could involve five years in jail. That person could be a member of a representative body who could be accused of doing something which could be calculated to induce somebody to withhold his or her services or to commit a breach of discipline. The person who commits a breach of discipline may, therefore, be fined €50, while the member of the Garda Representative Association who could be said to have done something which was calculated to induce that breach of discipline could be liable to imprisonment for five years. The section appears to go over the top. While I understand the concerns expressed by the Minister of State, I would like this matter, particularly in terms of the level of the penalty involved, to be given further consideration.
The next section deals with the impersonation of a member of the Garda Síochána which, in some circumstances, could be a serious offence, particularly if, as a result of that impersonation, a serious criminal activity took place or if, as has previously been the case, there was a serious imposition on the liberty of a citizen. The maximum penalty for this offence is also five years imprisonment. Section 52 is over the top by comparison with section 53. I will not press the issue further at this stage. I am putting down a marker that I would like the issue to be considered further in terms of whether it is over the top and whether it could possibly be unfairly used by a Government against what would be the quite legitimate activities of a representative association.
Is amendment No. 60 withdrawn?
I am still unhappy with the provision. I do not know what purpose it serves. The interpretation next to the section refers to "Causing disaffection". What are we attempting to do here? There was a real issue at the Morris tribunal, where gardaí refused to co-operate, in that they would not answer questions asked by their superiors. That is not the same as what is proposed here. This is a much broader attempt to muzzle the Garda by a penalty-based method and to criminalise the Garda if it steps out of line by withholding services or a breach of discipline.
What is the reason for this provision? Has it come about because of what Mr. Justice Morris said or are there other reasons it is being introduced? Have the Garda representative associations been consulted on this provision? Is there a problem within the Garda generally? Would it apply in circumstances similar to those which gave rise to the "blue flu"? This section is not just concerned with gardaí withholding their services but also with someone inducing any member to commit a breach of discipline. Either they are guilty themselves or they are induced into committing a breach. If there is any type of collective activity by gardaí whereby they do not turn up for work, will they all be subject to this particular action?
The intent of the section is clear and the Minister has indicated that he is anxious to see it enacted by the Oireachtas. Representations have been received from the representative bodies. They are not enthusiastic about this provision but the Minister believes it is in the public interest in terms of having a disciplined, effective Garda Síochána. That is the reason he has provided for it.
If it was recommended by the Morris tribunal——
I never said it was recommended by the Morris tribunal, nor am I suggesting that.
——it does not hit the nail on the head.
No.
I will revert to the matter on Report Stage. Perhaps the Minister of State will reconsider it before then.
A vote has been called in the Dáil. We will deal with section 53 immediately following the vote.
We could deal with section 53 now. It is quite short.
The division bell will ring for another three minutes.
SECTION 53.
There is nothing in section 53 with which we would disagree but it contains the same penalty as that contained in section 52.
In such circumstances, we should delay our discussion until after the vote.
No. This section is concerned with impersonating a member of the Garda Síochána. That is totally different.
However, the penalties are the same.
Yes.
That is the point I am making. What appears to be a minor matter under section 52 is treated the same way as a major matter under section 53.
Is section 53 agreed?
I would like the Minister to justify the reason that two different issues are being treated in a similar fashion.
We will deal with that on another occasion.
The same issue arises in section 54 and we can discuss the matter at that point.
We will resume our deliberations immediately after the vote in the Dáil.
I was hoping the Minister of State might explain the reason the penalties provided in this section are identical to those in the previous section. One penalty relates to the major offence of impersonating a member of the Garda Síochána, which, naturally enough, is a serious criminal offence, whereas the other relates to a member of the Garda Síochana withholding his or her service or committing a breach of discipline. The latter are not regarded as criminal offences but they are now being criminalised in a harsh fashion. There is a dichotomy here.
The penalties are provided for in section 54(3).
I apologise, I thought we were still discussing section 53.
We are still dealing with the same level of penalties.
Yes but we are dealing with a different section.
Perhaps, with the Chairman's permission, we could take both sections together.
No, we have finished with section 53. Obviously, however, members want the Minister of State to examine the question of penalties.
Yes.
Before turning to the penalties issue, have there been many instances of this type of activity in recent times — either from the point of view of impersonation or the improper wearing or possession of Garda uniforms — that would be a cause for concern?
The Deputy is well aware that there is one celebrated case in the public domain. Clearly, however, it is something that must be guarded against to protect the integrity of the force. As regards penalties, the Minister takes the view that section 52 relates to a very serious matter. He regards the latter as being as serious as the matter referred to in section 53. The penalty provided for in section 53 is the same as that provided for in section 52. In the original Bill, the penalty in section 54, which relates to the possession of items of Garda equipment, was less severe. However, the Minister came under pressure on this issue in Seanad Éireann and agreed to make the same penalty in section 54 as that which applies under sections 52 and 53.
As regards Deputy Costello's point, the Minister takes the view that the offence in section 52 is as serious a matter as that dealt with under section 53.
Is that correct?
Yes and he agreed with Senators who maintained that the conduct described in section 54 should be deemed to be of an equally serious character. Of course, the option of summary trial is provided for in all these sections.
I am amazed at the thinking of a Minister who would classify criminal conduct, such as the impersonation of a member of the Garda Síochána or the improper possession or use of Garda uniforms — no doubt for criminal activity — in the same league as somebody who would seek to improve pay and conditions in the Garda Síochána. It is mind-boggling and I cannot understand how any Minister could put such actions in the same category. I am even more amazed that the penalties originally provided for in section 54 were less severe than those in section 52. It is incredible and I do not believe that the right balance is being struck. My approach is more representative of the correct balance, which is that criminal offences should be dealt with through serious penalties. While one would not encourage offences that fall roughly into the non-criminal category, they should not be in the same league as criminal offences regarding penalties.
I notice in section 54 that the Minister was good enough to exempt the wearing of any uniform or dress in a performance in the theatre or on film, television or other media. It was very kind of the Minister to exempt people in that section of society from his penalties. Will the Minister of State indicate what were the penalties in section 54 before the Seanad increased them? Does he agree that there is a world of difference between what is penalised in sections 53 and 54 — which were always criminal matters — and matters of discipline and service in section 52? Nobody in their right mind — not even the Minister — could equate the two in terms of seriousness or in deeming them to be criminal activity of the same nature. It is mind-boggling to equate sections 52 to 54, inclusive, with each other. Perhaps the Minister of State could inform the Minister that section 52 does no good service to the Garda Síochána in coming down on ordinary gardaí in this fashion. It is likely to be provocative and will only cause disaffection, which the Minister is penalising in the section.
The original penalty in section 54 — for possession of articles of Garda uniform or equipment, without giving a satisfactory account of wearing such uniforms or imitation uniforms, assuming the designation of a Garda, and offences ancillary to impersonation — was a fine not exceeding €2,500 or imprisonment for a term not exceeding six months, or both. The Minister has now strengthened the penalties to be equivalent to those in section 53.
As regards section 52, I will draw the Deputy's concern to the attention of the Minister. However, the Minister does not believe it is a trivial matter if someone induces or takes action calculated to induce a member of the Garda Síochána to withhold services or commit a breach of discipline. That is not a minor matter, it is a serious matter concerning the force and it must be addressed seriously in the legislation.
On the second point, was provision originally made for a conviction on indictment in section 54?
No. Originally, there was no provision for that procedure on indictment in section 54.
Would that not be more like the penalty for section 52, which the Minister should adopt if he had any sense at all?
The Deputy can revisit that matter on Report Stage.
I am sure the Minister will examine the matter.
I was referring to the other Minister.
It is now well understood what section 54 is about.
I move amendment No. 61:
In page 38, subsection (1), line 8, to delete "under the" and substitute "of that person's office, employment,".
This is a technical drafting amendment to section 55(1) to insert a reference to a person's office or employment. It restores the provision of the format which appeared in the Bill as introduced. We have decided that it is a better formulation after all and it ties in with a similar provision in section 73.
Amendments Nos. 62 and 63 are related and both may be discussed together.
I move amendment No. 62:
In page 38, subsection (2)(h), line 37, after “privacy” to insert the following:
"or involves the publication of personal information relating to a deceased or missing person in a manner likely to cause distress to relatives of that person".
The amendment is fairly clear, so perhaps the Minister of State will respond to it.
Amendment No. 63 in my name proposes that "information shall not be deemed to be of harmful effect if it can be shown that its disclosure was inadvertent or procured through fraud or deceit". We must provide for innocent disclosure. As someone who worked as a solicitor for many years, I am very much attuned to the notion of confidentiality. That always applies to solicitors in regard to their clients' affairs. I would be very much in favour of insisting on confidentiality among members of the Garda Síochána. However, we are creating a criminal offence with a penalty of five years in prison and I am concerned that no thought seems to have been given to possible circumstances where the disclosure might be inadvertent. For example, information could be disclosed to a person assumed to be a chief superintendent but who could turn out to be a journalist impersonating a chief superintendent. Would one condemn a garda in that situation? Such a disclosure would be innocent or inadvertent. While I want to see the principle confidentiality here, I am concerned the Minister, as is his wont, is perhaps going over the top on this issue. That is the purpose of my amendment.
I understand why Deputy Costello tabled his amendment because it relates to a matter which has caused great distress to relatives of missing persons. The sentiment is understood but we are dealing with criminal legislation and we must be precise in the terms of an offence a potential offender may commit. The amendment refers to distress but that is an imprecise expression and a very subjective issue. I am not taking, in any way, from the distress experienced by those who have suffered from these unwarranted disclosures but to translate that into a criminal statute raises difficulties of interpretation. The word "relative" is also used. Again, that is not a canonical term in legislation and one would need a far more precise definition such as "next of kin".
Apart from those technical issues, I assure Deputy Costello that the Bill provides particular safeguards in respect of a deceased or missing person. I am sure he will have noticed that section 55(2)(f)(ii) reads “whose identity is not at time of the disclosure a matter of public knowledge”. Circumstances in which a disclosure results in the identification of person whose identity is not at the time of the disclosure a matter of public knowledge or in which such a disclosure results in the publication of information that relates to a person who is a witness to or a victim of an offence are, therefore, covered by section 55(2)(g)(i). Section 55(2)(h), the paragraph Deputy Costello is seeking to further amend, reads “results in the publication of personal information and constitutes an unwarranted and serious infringement of a person’s right to privacy”. I am advised that these various subsections give ample opportunity in appropriate cases to deal, by way of criminal statute, with the type of behaviour described by Deputy Costello in his amendment.
Deputy Jim O'Keeffe's amendment seeks to include a general provision that information shall not be deemed to be of harmful effect if it can be shown that its disclosure was inadvertent or procured through fraud or deceit. I appreciate from where the Deputy is coming but the Minister is not in favour of inserting a provision such as this in the section dealing with the disclosure of information. Once information is released, the damage is done.
Deputy Jim O'Keeffe's example described a journalist impersonating a member of the Garda Síochána and information being inadvertently disclosed as a result. We must remember that we are providing for this by way of criminal law. In such a circumstance, an offence would not have been committed by the member who disclosed the information because there would have been no intention to disclose. There would have been no mental element in the conduct. The word "knowingly" is included in section 55. The person committing the offence must know the disclosure of the information is likely to have a harmful effect. That is the mental element we are prescribing for this particular offence. Liability would not arise in the example given by the Deputy.
My amendment specifically refers to missing persons and the deceased. I take the Minister of State's word that he is satisfied it is adequately covered in the preceding subsections.
Amendments Nos. 64 and 65 are related.
I move amendment No. 64:
In page 39, subsection (4), between lines 5 and 6, to insert the following:
"(a) is made in the interests of protecting the integrity of the force,
(b) is made in the interests of highlighting any activity which is likely to be prejudicial to the integrity of the force,
(c) is made in the interests of the apprehension of a criminal,
(d) is made in the interests of aiding the detection of an offence,”.
I propose that a member should not be prohibited from disclosing information in one additional circumstance, namely, where the disclosure is made in the interests of protecting the integrity of the force, in the interests of highlighting activity which is likely to be prejudicial to the integrity of the force, in the interests of the apprehension of a criminal or in the interest of aiding the detection of an offence.
I am again somewhat concerned about the absolutist tone and effect of the section, as drafted. It is really a question of whether the media or others have any role or whether the media can be of use to the Garda Síochána and assist in the investigation of crime. Disclosure in certain circumstances could be useful. I am concerned that the section, as drafted, does not allow for disclosure in a situation where an effort is genuinely being made by the member to protect the integrity of the force, to operate with a view to catching criminals or to aid the detection of an offence.
Amendment No. 65 in my name has a similar effect in that I propose that nothing should prohibit a person from disclosing information to the public where such a disclosure is a matter of exceptional and overriding public interest in all the circumstances. It allows for media disclosure or other mechanisms where there is sufficient reason for doing so, that is, if it is of substantial public interest.
We had a debate previously on whistleblowing and whether somebody who has information should have the protection of the law if disclosure of the information is in the public interest. The section provides for a blanket refusal to allow disclosure of information and there should not be a prohibition on such information when it is in the public interest to disclose it. That may be a matter of subjectivity.
Perhaps we will continue this debate tomorrow morning. We will not complete Committee Stage and, therefore, I propose we should adjourn until tomorrow morning.