I welcome the Minister for Justice, Equality and Law Reform, Deputy McDowell, and his officials back to the committee. We will commence with Part 3 today.
Garda Síochána Bill 2004 [Seanad ]: Committee Stage (Resumed).
SECTION 56.
Question proposed: "That section 56 stand part of the Bill."
Has the Minister thought about when the establishment date might be? What factors will feed into a decision on it?
I have asked Senator Maurice Hayes and a number of eminent people to act as the supervisory group for the implementation of this Bill, on the assumption that it has passed both Houses by the end of this session. The commencement date will not be before 1 January 2006 because we must recruit staff, establish offices and perform many other related tasks. I am giving the matter some consideration and I will confer with the Hayes group as to whether I should establish the ombudsman commission in shadow form prior to the establishment date in order to ensure that it hits the ground running.
Question put and agreed to.
SECTION 57.
Question proposed: "That section 57 stand part of the Bill."
A body corporate is to be established. Is this related to the fact that it is proposed to have a three person as opposed to a single person commission? What is the reasoning and what precedents exist in other countries?
It is neater from a number of perspectives. For example, if the commission were to employ someone or enter a contract, the contract would be with the commission and not with individuals who could change over time. If one has a group of three or even if one has a single person who is personally liable on a contract, all sorts of complications arise if that person changes. Are contracts made in the name of the person as a corporation sole or as an individual? That is the thinking.
Question put and agreed to.
SECTION 58.
Amendments Nos. 68 and 69 are related to amendment No. 67 and may be discussed together.
I move amendment No. 67:
In page 40, subsection (1), lines 25 and 26, to delete "3 members, all of whom are" and substitute "one member who is".
This is the basic point that arises regarding the ombudsman. All of us have been impressed by the good example and precedent set in Northern Ireland by Nuala O'Loan. That is a one person office which has been highly effective. If we wish to be as effective, should we not follow what appears to be a worthy precedent? It has been suggested that by having three people involved, it could dilute the office and, to some degree, possibly render it less effective. It would be — I should choose my words carefully — less strident in discharging its functions. I have been impressed with Nuala O'Loan's performance in Northern Ireland as a single ombudsman. This precedent should be given consideration in the decision on whether to run with a multi-member commission.
The purpose of amendment No. 69 is to deal with the question of who may be appointed a member of the Ombudsman Commission. We should ensure that vacancies are advertised outside the State as there is a case for highlighting and underlining the independence and standing of the ombudsman or commission, as the case may be. Its independence could be enhanced by opening up membership to individuals from outside the State. The reason I tabled the amendment is to create circumstances in which a person from outside the State could apply.
The first question to arise from these amendments is why the commission should have three members. We have discussed previously with the Minister the reason he, given that no one else believes an ombudsman is anything other than one person, opted for a three member commission. The Minister has decided to establish a commission, a body corporate consisting of three members which, as a structure, does not appear to be as accessible or immediate as the single ombudsman model established in other domains to provide a service to the public.
The Ombudsman Commission will not be as effective because it will have three members. The Minister previously stated that if he had opted to have one person, the Opposition would have argued for a three, four or five person commission. That would not have been the case. There is a perfectly efficient, effective and workable model in Northern Ireland. When a specific model is seen to operate effectively in another jurisdiction, it is always preferable to consider using it rather than rowing out into uncharted waters by introducing a new model.
It is seldom that machinery of this nature works effectively. The danger with all such structures is that they may become bogged down by bureaucracy and inscrutability and develop defensive mechanisms rather than providing the transparency and accountability that is sought. It is essential to have a person who is prominent and identifiable because bodies of this nature must not have any degree of anonymity. The danger of having a tripartite commission — a triumvirate including one woman — is that it will lack a clear identity. This would be damaging, given that the purpose of the exercise is to have a clear mechanism that is answerable and seen to be answerable. It is a shame the Minister did not opt for the existing model of ombudsman and reap the benefits of what has already been seen to work.
The same principle applies with regard to my amendment. I do not want an anonymous chairperson. It would be preferable, therefore, that the chair be identified at the point at which the commission is established and its members appointed by the President, rather than having an anonymous committee of three which may or may not have a chair. The latter approach would create confusion and a lack of clarity in the operation of the commission. If the chairman is appointed by the President for the duration of the commission's term, at least there would be an identifiable person who would be expected to speak on its behalf. As matters stand, we will have a commission of three persons, none of whom will be directly responsible.
While it is difficult to get answers directly from a commission, it is much easier to get them from a person. If a chairperson were to be appointed by the President, it would confer an important function on the person in question and, by having an identifiable person who would be answerable in a transparent fashion, help make the improvements we seek. The chairperson would effectively be expected to act as spokesperson for the commission in matters of public concern and as the point of contact for the public. The old question of who to call when one wants to contact Europe arises in this context. Who will one call when one wants to contact the commission? It is not transparent to call a committee. If my amendment were accepted, it would sharpen the commission.
Like Deputies Costello and Jim O'Keeffe, I am at a loss to understand the reason the Minister has proposed an ombudsman commission rather than a single person surrounded by a team. The latter would be more focused and would, I hope, replicate the great work of Nuala O'Loan who has set the standard for the office of the ombudsman of the Garda Síochána. Reaching that standard will be a difficult task. We should set as our minimum objective the effectiveness of the office of Nuala O'Loan.
During the debate on this section, I will table amendments required to ensure that an ombudsman rather than an ombudsman commission will be established. The main issue is that the Minister must ensure that adequate resources are made available to the ombudsman or, in the event that he is unwilling to accept our amendments, the Ombudsman Commission to guarantee that the functions provided for under section 60 can be carried out in full and that investigations or inquiries which may become necessary are conducted as efficiently, effectively and quickly as possible in a manner that ensures the public will have full confidence in the procedures in question. This has not been the case — if it ever was — with regard to the Garda Complaints Board in recent years. The reason the Minister must ensure sufficient moneys are allocated to the ombudsman is that the Human Rights Commission is underfunded and under-resourced. We do not want another body which is tasked with representing the public, inquiring, investigating and upholding its rights without sufficient funds to carry out its full duties.
I have a number of amendments with which I will deal as we come to each section. I support amendments Nos. 67 to 69, inclusive and hope the Minister will consider accepting them.
On section 58, the Ombudsman Commission should be appointed by the President on the recommendation of an independent advisory body rather than plucked out of thin air. It is not stated who will make the recommendation. It is to be decided by the Government. If the Ombudsman Commission is to enjoy the confidence of the public, the more independence it has from the Garda Síochána and the Government of the day the better. Those within and outside the Garda Síochána will have faith in the ability of the commission to examine each complaint with which it will deal if its functions are fully independent and it is as accountable and transparent as possible.
I strongly support amendment No. 68 which is constructive and progressive and would strengthen the legislation. On the issue of policing and the Ombudsman Commission, we must face up to the reality that we need radical reform of policing services on the island in both jurisdictions. We also need radical and progressive change which should be an urgent priority, as we have seen in recent days. We need quality policing, professionalism and people who like and respect the job. We also need accountability. There is an historic consensus here today in that we have heard people from all parties praising Ms Nuala O'Loan. All the people on this island respect the job she is doing and have confidence in her.
It is important, in respect of the Ombudsman Commission, that the public sees professionalism, accountability and quality policing. I feel very strongly that if some of the ideas in amendment No. 68 are taken on board, community respect for the Garda Síochána will increase and accountability spread. Last night I received a telephone call from Mr. Frank McBrearty Junior. Listening to him on the telephone I could hear how distressed and traumatised he was by his particular case. We should remind ourselves that there are such cases. It is important to have the Ombudsman Commission in order that the people will get the quality police service they deserve but also to ensure the Garda Síochána will be seen to get a fair hearing. That is why I support amendment No. 68 and believe it is so important.
In deciding on a three-person commission the Government was influenced by a number of considerations. First, contrary to what is suggested in some commentaries, three-person or multi-person commissions are usual. They are in place in Canada and Great Britain. It is not as if there is something egregious or unusual about the idea of setting up a multi-person commission. Commission members are entitled to go away on holiday or foreign trips. The commission need not grind to a halt if one of its members is indisposed or undergoing surgical treatment. There are very good reasons there should be more than one person in the job. Nothing I say is intended to detract in any way from the merits of Ms Nuala O'Loan. However, there are compensating advantages to having more than one person on the commission.
Commentators have different views. An article written by a barrister in the Irish Law Times states that having three persons making important decisions is a more accountable method than having only one person. I fully accept that one person has a stronger brand image in principle. However, having three for a job of this size, complexity and responsibility is better if we can afford it. That is why we are having a three-person model.
On Deputy Costello's amendment, I am disposed to accept its principle. It is desirable that one of the members of the commission should be its titular head and act as chair in that capacity. I could accept the Deputy's amendment except that a few consequential amendments would have to flow from it. I ask him, therefore, to take on board that I accept the principle of his amendment and will bring forward an amendment on Report Stage to give effect to it. It is desirable that there should be a chairperson of the commission.
Deputy Jim O'Keeffe's last amendment provides that vacancies should be filled by advertising within and outside the State and encouraged from persons outside the State. I wonder if there is a misprint because I do not know what that means. It obviously meant something but perhaps somebody's handwriting was unintelligible. I make the general point that proceeding by way of advertisement is not very desirable because there are many who would be prepared to act if approached by the Government but who, for whatever reason, do not want to enter into an open and transparent competition and do not want it known that they are prepared to act. If, for example, we were to appoint a judge, would we want it known that members of the Judiciary applied and were rejected? Would that be a good idea? Prominent solicitors and barristers might not want it known that they had applied for a position and had been rejected.
My heart bleeds for them.
It is not their dignity with which I am concerned but the quality of the candidate. I am convinced, from my experience, that the process of operating by competition is sometimes entirely negative. Those who would be willing to take the job if they were offered it might be people who would never dream of responding to a newspaper advertisement, just as there are some who write to newspapers but there are others who believe it is a sign of madness.
That is how I started, by writing to newspapers.
I said there were some who believed writing to newspapers was a sign of madness. I enjoy newspaper letters and I am not one of that school.
We have provided that the Government will nominate, that resolutions will have to be passed by both Dáil Éireann and Seanad Éireann recommending the appointment of the persons concerned and that they will be appointed formally by the President, as would be the case regarding the Ombudsman. In addition, in considering the nomination of a person, the Government shall satisfy itself that the person has the appropriate experience, qualifications, training or expertise for appointment to a body having the functions of the commission. Likewise, as regards the seniority of the position, the salary which the post of chairperson at least will attract and the fact that a Superior Court judge will be eligible for the job are strong signals that this is a serious position. The position will not be given a salary level which would indicate that it was being downgraded in any way. These features of the proposal are sensible.
The Government is satisfied that a three person commission is appropriate and has continuity. One will not find oneself in the position that if a member becomes seriously ill, the entire system will be thrown into confusion. The Government wants three people on the commission because it is internationally usual to have more than one person in such a position.
I agree with Deputy Costello's amendment. While there is nothing to prevent the Government from placing an advertisement in a newspaper or elsewhere, I am not keen on the idea that the only way to become an ombudsman is to reply to an advertisement. This would not be a happy position, nor would it necessarily produce the best candidates. Specifically, it would not be desirable to have Superior Court judges making job applications and being rejected in public.
My first amendment dealt with a single member commission. I will consider the Minister's comments and withdraw the amendment, although I may reinstate it on Report Stage. With regard to a three person commission, has the Minister considered what will be the position in the event of a disagreement arising between its members? Will the chairperson have a casting vote or will a majority decision be acceptable in the event of disagreement on a fundamental issue?
I am glad Deputy Costello's amendment has been accepted, given the necessity to have a nominal head who is primus inter pares. His proposal offers a good solution and I am delighted it has made headway.
I will not press my amendments on the method of filling vacancies. I am laying down a marker because I have some concerns about certain appointments made to a number of bodies by the Government. I do not want the commission to be filled in the same way that prison visiting committees have been filled, although I admit my concerns in this regard relate more to the Minister's predecessor. Having observed appointments to bodies such as the Refugee Appeals Tribunal, it strikes me that in many instances the main qualification appears to be membership of a cumann of a certain party. I am not sure what is the equivalent of a Fianna Fáil Party cumann in the Progressive Democrats.
Surely it is a transparent selection process.
Not at all.
I want to have a process which is transparent and above board. I accept that it may be necessary to head-hunt candidates in some instances, provided it does not entail head-hunting into the boondocks of Fianna Fáil cumainn. Head-hunting must be genuine to ensure we have a commission which everyone can support, which will be clearly independent and of which we can be proud. I am happier that any such appointment must be approved by a resolution placed before the Houses, which is in contrast to appointments to the Refugee Appeals Tribunal. I am laying down a marker in this regard because this is an important appointment from the perspective of the Garda Síochána and the general public. I will not press the amendment.
The Deputy clearly accepts that the Fianna Fáil Party will be in Government into the foreseeable future.
The Chairman will note that my first question related to the establishment of the commission. When he referred to a date of 1 January, I thought the Government might just survive until then. Thereafter, it will be Deputy Costello or I who will make these arrangements and I have absolute confidence that any arrangements, which will be instituted by Deputy Costello or me, will——
I am glad to note that Deputy Jim O'Keeffe is yielding right of way to Deputy Costello as the putative Minister for Justice, Equality and Law Reform under an alternative rainbow Government. It is encouraging that Fine Gael is already becoming docile on the matter.
It may be a rotating Minister.
It is encouraging behaviour.
The Minister is wont to draw conclusions but sometimes they are not justified by the evidence.
I am touched by the Deputy's bravery in mentioning the suggestion that party political appointments are made by this Government. I do not wish to dwell in any way improperly on appointments made in the past but if people check my record they will see that I have appointed members of every political party and none to judicial office in a way that nobody from the parties opposite has ever equalled. Nobody has equalled the extent to which I have been neutral in the question of judicial appointments.
I am touched, in particular, by the Deputy's reference to prison visiting committees because I have appointed members of such committees at the request of members of the Fine Gael Party. That point may be unknown to the Deputy but I remind him of a letter he wrote to Nora Owen when she was in my job asking that a member of Skibbereen Town Council be appointed to a prison visiting committee in Dublin or preferably somewhere north. The word "north" was followed by an exclamation mark.
The Minister is wrong. He mentioned the wrong location and the reason was that the person in question was a Southern Protestant.
Irrespective of whether he was a Southern Protestant, he was a town councillor for the Fine Gael Party and was interested apparently in travelling——
I note the Minister did not touch on his appointments to the Refugee Appeals Tribunal.
We are moving away from the issue. The Minister will respond on the issue of disagreements with commissioners when Deputy Costello and other members have spoken.
An interesting discussion was developing between the Minister and Deputy Jim O'Keeffe. The issue of prison visiting committees badly needs to be addressed, probably by changes in legislation. It might be worth examining the 1925 Act with regard to how appointments are made.
Is the Deputy referring to the commissioners?
The prison visiting committees will be the Minister's next task once he appoints the commission. I welcome his acceptance of my amendment. However, while it is a good amendment, it is not great because it would be better to delete reference to appointing three members. If a one member ombudsman's office were appointed, my amendment would not be necessary. That said, I will not look a gift horse in the mouth. The appointment of a chairperson by the President will strengthen the commission and give it greater focus. It is preferable to having an anonymous three member commission in which it would be difficult to determine issues such as responsibility and who exactly speaks for it.
I have a query regarding the process which is, by and large, good in terms of the nomination by the Government and appointment by the President. As Deputy Jim O'Keeffe stated, it does not involve a prior selection process, as such, but it does involve the passage of resolutions by Dáil Éireann and Seanad Éireann recommending the appointment. Might that create a potential problem in the future? I am not stating it is not good that it should go before the Dáil and Seanad. What if one of the three members being proposed is criticised by either the Dáil or Seanad? We must consider the type of action they will have to take, the role they will play. Their roles and functions are extremely sensitive. They will be sitting in judgment on alleged misbehaviour by members of the Garda Síochána.
It would be difficult to make an appointment without even one party in the House raising questions about one of the members because of the nature of the work concerned. That would seem to suggest the need for a consultative process which would operate between the Government and the Opposition prior to a name being put forward in the House and, possibly, that there also be a selection process in respect of the three persons nominated for appointment. The Minister would, therefore, be in a position to strongly defend that process in that there would be some independent element to it. He or she could outline the process and indicate the names of those to be considered by the Houses for appointment. If it is simply left to a nomination by the Government, however, it is inevitable, as is the way of matters of this nature, that a Member of one of the Houses will make an allegation about one of the nominees. That might give rise to questions which could damage the commission.
My second point was also made by Deputy Jim O'Keeffe. It seems that the Bill makes provision for matters to be decided individually by members of the commission. Does it do so? It is not quite clear. Must the commission act unanimously or will a majority decision suffice? If the dissenting member of the commission had previously been mentioned in one of the Houses, the Minister could experience difficulties in terms of how a decision was made. While the legislation provides for confidentiality, the Minister knows the way these matters develop. It is not always possible to ensure watertight confidentiality in respect of an issue.
The Minister has not convinced me of the need for three members. The Police Ombudsman for Northern Ireland is one person, namely, Mrs. Nuala O'Loan. She takes holidays and her office continues the work required. It is the title that is being granted. The office is obviously the body which will take on most of the work, rather than the individual who is in charge. I am not sure. Perhaps the easiest way would be to make it a one person commission. It would avoid some of the conflicts and dissenting voices to which Deputy Costello referred.
On the question of how somebody will be nominated or identified to apply for the position, it should be a public process involving an advertisement outlining specific criteria. The Government should encourage individuals it believes are capable of doing or preferable for the job to apply in the belief that those people would come through that process with flying colours. If some of the judges applied, perhaps it would be a reality check for them if they were rejected. Solicitors and many others could look at that.
That is true.
I am still of the opinion that the Ombudsman should be appointed by the President on foot of a recommendation from an independent advisory body and a nomination from the Government.
While I understand Deputy Costello's point in terms of the passage of resolutions by Dáil or Seanad Éireann, irrespective of who is selected there is the opportunity, whether before, after or during the passage of such resolution, for somebody to comment on an individual member of the Ombudsman Commission. That should not deter the Dáil or Seanad from passing the resolution or from endorsing them, if Members believe the person is the most ideal for the job. It is more than likely that it will be similar to many other resolutions in that it will be taken without debate and rubber-stamped.
It can be referred to the Joint Committee on Justice, Equality, Defence and Women's Rights for a decision.
I am still of the opinion that we should change the Ombudsman Commission to consist of a single person, whose office would be fully resourced and would carry out the functions. I will be tabling amendments to that effect to change this section.
I do not want to prolong the matter further. The fact that somebody could have something bad said about him or her in the course of a debate applies equally to the current procedure in the case of the Ombudsman. When I previously served as an Opposition Deputy, I recall, on the occasion of one Ombudsman's appointment, querying not the personal qualities of the individual concerned but his background and history. The instance to which I refer — I make no secret of it — was that of the appointment of Mr. Kevin Murphy as Ombudsman. I felt, perhaps rightly or wrongly, that it was not a good practice for a senior official of the Department of Finance to be appointed to that position and I made that view clear in the Dáil. As usual, nobody listened to me. I do not know whether I was right or wrong. It is a matter of judgment afterwards. It never stopped me from having a robust and cordial relationship with Mr. Murphy. I did not make comments impugning his personal character.
One must bear in mind that if a Government was tempted to appoint somebody who was unsuitable, it would have to bear in mind that the person would have to run the gauntlet of scrutiny. If the appointment was in any way egregious, there could be serious criticism. That would deter a Government from coming up with somebody who would not be a consensus candidate for the position.
Amendment, by leave, withdrawn.
Amendments Nos. 68 and 69 not moved.
Question proposed: "That section 58 stand part of the Bill."
I raised the question of a disagreement among the three members and how that would be resolved.
I will deal with that in an amendment.
There is also the case where the two junior members may disagree with the chairman.
There will be no junior members. One will be the chairman but the three will be equal.
Primus inter pares. Are we also clearing Schedule 4 at this stage because that is referred to?
No, that will arise later.
While it is probably not the Minister's idea to appoint a public servant, there seems to be a suggestion that the commission might be a resting home for judges or retired judges. That seems to be the clear thinking in Schedule 4.
That relates to Schedule 4. We are on section 58. When we conclude on section 122, we will deal with it.
Section 58 deals with Schedule 4 and incorporates it in subsection (4).
That is a separate item that must be agreed.
It gives an indication of the Minister's thinking as to who might or might not be appointed. I have no objection to judges but I do not want it exclusively consigned to them.
This matter can be discussed later.
Section 58(6)(d) rules out a former member of the Garda Síochána being eligible for appointment to the Ombudsman Commission. Is there any provision to prevent a member of the PSNI or another force in Britain joining the commission?
It is open to allow an individual with experience from an outside police force to join the commission. I considered whether a policeman coming from another force should be excluded. However, there is nothing objectionable about a provision allowing for such an individual to join the commission. I believe the balance is right in this area. The public would be sceptical if a former garda of rank became a member of the commission. I want to underline the independence of the commission. I do not want to exclude the possibility of, for example, an American police commissioner being appointed to it.
Question put and agreed to.
SECTION 59.
Question proposed: "That section 59 stand part of the Bill."
Greater detail must be set out in terms of what is meant by remuneration for members of the commission. A grade or level could be applied. Will the remuneration on offer be equivalent to that of a High Court judge, a principal officer or the Secretary General of a Department? Why is it left open to be determined by the Government on an ongoing basis?
Is the Deputy giving notice of a Report Stage amendment?
I am not sure yet. I am asking why this provision is so broad.
I want to leave considerable room for flexibility in the terms and conditions of appointment. The Houses of the Oireachtas will have to give approval to these matters. I do not want it tied down in any particular way.
Is there an equivalent in terms of other Government appointments? The majority of such appointments with which I am familiar are tied to some remuneration framework.
I will provide an example. The President of the Human Rights Commission is paid a High Court judge's salary. A serving judge can be appointed to the Human Rights Commission. It is a signal to the Department of Finance that it cannot decide that once the Bill is passed, the remuneration will be set at a principal officer's salary level. It is a convention that if the position is one to which a superior court judge can be appointed, then the salary for a full-time member of the commission will be at the level of that paid to a superior court judge.
I was not seeking that it to be limited at a lower end pay scale. A suitable candidate for such a post must be of good standing and may be needed to be encouraged to leave other employment. The remuneration of High Court judge would be a positive aspect in that regard.
Will the three members of the commission be paid the same amount? If one of the candidates is a serving or retired High Court judge, the rate will then be fixed.
I imagine they will be paid in or about the same amount if they take the job on a full-time basis.
Will all three members be appointed on a full-time basis?
I want to leave some flexibility in this area. An individual who may be useful to have on the commission may not want to be a full-time member.
Are the Revenue Commissioners all paid the same amount?
Section 59(4) states:
The Ombudsman Commission may act notwithstanding one or more than one vacancy among its members, including a vacancy that results in section 58(2) not being complied with.
This implies that the commission does not need to have its full quota of members when making a decision. There is an in-built recognition that the three members will not make decisions at all times.
That is impracticable for the reasons already mentioned. The section provides that the commission can act notwithstanding one or more vacancies among its members. A situation could arise where a member died suddenly. In such circumstances, a serious investigation may require a decision by the commission. By not having such a provision, the commission would be paralysed until the Houses of the Oireachtas approved a successor.
There is no suggestion of when a vacancy might be filled.
No. The terms of section 58(1) are mandatory as it states that the commission is to consist of three members. There is a clear duty on the Government to make a nomination as soon as possible.
Question put and agreed to.
SECTION 60.
I move amendment No. 70:
In page 42, subsection (2), between lines 5 and 6, to insert the following:
"(d) to prosecute summarily members of the Garda Síochána where it decides to do so,”.
Section 60 provides for the objectives, functions and powers of the commission. Section 60(2) outlines these various functions, such as receiving complaints, carrying out its duties and issuing guidelines. This amendment will include a function for the commission to prosecute summarily members of the Garda where it decides to do so. This is to prevent the commission handing over to the Director of Public Prosecutions the entire decision-making process as to who will or will not be prosecuted.
The Director of Public Prosecutions does not have to explain his reasons for making such a decision. I am not sure if the same is the case with the Ombudsman. However, the authority of the Ombudsman Commission should allow it to prosecute in summary cases and make the decision as to what cases are appropriate to go before the courts. It is not necessary to refer every case to the Director of Public Prosecutions. The Minister is anxious to put a structure in place where the Director of Public Prosecutions is the sole prosecution agent on behalf of the State. That is fine in theory. In this instance, however, an office is being established which must have transparent and accountable mechanisms. The decision taken by the commission must be seen to be clear. If every case passed to the ombudsman is subsequently passed to the Director of Public Prosecutions, the role and authority of the ombudsman's office will be weakened. It would be strengthened by allowing the ombudsman, having examined a complaint against an individual member of the Garda Síochána and reached the conclusion that the case should be summarily prosecuted, to make a decision.
I am not attracted to the idea of the Ombudsman Commission being a prosecutor. I have considered this point previously. Members of the Garda Síochána are entitled to the same rights as everybody else. We must all abide by the Director of Public Prosecution's decision in a matter and members of the Garda Síochána should have the right to be prosecuted by an independent prosecutor and not by a person who had already investigated a matter and reached conclusions which he or she publicly stated. In my opinion, members of the Garda Síochána would view that as unfair.
What would happen if the Ombudsman Commission took a particular direction that was publicly known and then tried to prosecute people in the courts? It might be embarrassing for the courts to deal with matters wherein the ombudsman commission acts as prosecutor. I would prefer if everybody appearing before the District Court under this legislation does so because the DPP believes a prosecution should be brought.
Is that explanation reasonable to Deputy Costello?
There is something in what the Minister says. Can we take it then that cases referred to the DPP will be a matter of public knowledge? Section 60(2)(d) states “in appropriate cases, to report the results of its investigations under Part 4 to the Garda Commissioner or to the Director of Public Prosecutions and, if it reports to the Director, to send him or her a copy of each investigation file.” I would have thought the only reason a report would be made to the Director of Public Prosecutions would be for the purpose of recommending prosecution. Why is this line of communication between the Ombudsman, Garda Commissioner and the DPP being put in place if it is only “in appropriate cases” that the Ombudsman Commission must report the results of an investigation? What are appropriate cases? Are they cases where it is expected court or disciplinary action will be taken? What will happen to the other cases?
Section 93(2) states:
(2) If the Ombudsman Commission, after considering the designated officer's report, is of the opinion that the conduct under investigation may constitute an offence by the member of the Garda Síochána it shall—
(a) send a copy of the report and of the investigation file to the Director of Public Prosecutions together with any recommendations that appear to the Commission to be appropriate and,
(b) at the Director’s request, provide him or her with any information relating to the investigation that appears to the Director to be necessary for performing his or her functions under the Prosecution of Offences Act 1974.
Section 89 is concerned with cases where the recommendation is to take disciplinary action. I want to make it clear that I am not removing the authority of the Garda Commissioner as the fons et origo of discipline in the force. There were suggestions that he or she should not be the person who makes disciplinary decisions. I do not want it to be the case that some disciplinary actions are taken in circumstances wherein it might be perceived by the public that the Commissioner was not going along with the process. If the Commissioner was seen to be distancing himself or herself from disciplinary action taken against members of the Garda, that would be extremely damaging to the sense of discipline within the force. Discipline must be a unified, coherent code. I am strong on the issue of discipline. We cannot allow a situation whereby when disciplinary proceedings are being initiated, the Commissioner is seen to be distancing himself or herself from that process. That would undermine discipline in the Garda Síochána.
I accept the Minister's points on sections 80 and 93. In appropriate cases, a report of the results of an investigation will be sent to the Garda Commissioner and in other cases a report will be sent to the Director of Public Prosecutions. Are cases referred to places other than the Garda Commissioner and DPP? Section 89 relates to matters of discipline under the disciplinary regulations of the Garda Síochána. Section 93 relates to cases likely to be dealt with by the courts and with which the Director of Public Prosecutions would deal.
Will cases which will not require disciplinary action or which will involve judicial proceedings be contained in reports on shelves in the Ombudsman's office or will they be brought to the attention of any other body? Should all reports, whether involving disciplinary proceedings or taken by the DPP, not be sent to the Commissioner? All cases should be accounted for by way of report. It is only in appropriate cases that the ombudsman commission must provide the results of an investigation to either the Garda Commissioner or the Director of Public Prosecutions. I am merely pointing out to the Minister that it appears that cases which will not require disciplinary proceedings under the disciplinary regulations or which will not warrant judicial action will be left behind. What will happen to such cases? Will they remain in limbo, with nobody knowing what happened to them?
Is there a minor drafting issue in paragraph (d)? If the Ombudsman Commission reports to the Garda Commissioner, is it precluded from reporting to the Director of Public Prosecutions and vice versa as a result of the use of the word “or”? Could a person, if prosecuted, make the case that because a file had been sent to the Garda Commissioner, the Ombudsman Commission was not empowered under the section to also send it to the Director of Public Prosecutions?
I presume the Deputy is referring to a person under investigation.
Having spent many years in the District Court, I could foresee that a person might try to plead that point.
I will review paragraph (d). It may be that it is an unnecessary choice at that point.
Investigations carried out by or on behalf of the Ombudsman Commission will result in four broad outcomes: first, there will be no case to answer; second, there will, as provided for under section 82, be an informal resolution of an issue; third, there will be a civil investigation — non-criminal in nature — for a disciplinary breach; and, fourth, there will be evidence of a suspected criminal offence. In those circumstances the material is furnished to the Director of Public Prosecutions for a decision.
That still does not deal with the point I am making. Should the results of all investigations by the Ombudsman be sent to the Garda Commissioner?
I will consider that point as I believe the Garda Commissioner should be notified of what has happened.
Only in appropriate cases. Under the regulations, they only go to the Garda Commissioner for disciplinary matters.
The Deputy is correct that it would be unsatisfactory if cases just disappeared and the Garda Commissioner never found out what happened to them. Bearing in mind what Deputy Jim O'Keeffe said about the words "and" and "or", it must be made clear that the Commissioner is entitled to know what happened in every case.
I accept the Minister's argument.
Amendment, by leave, withdrawn.
Question proposed: "That section 60 stand part of the Bill."
I may table several amendments on this section on Report Stage in terms of how it works with sections 93 and 98 in recommending changes to policy and procedure.
Question put and agreed to.
SECTION 61.
I move amendment No. 71:
In page 42, subsection (2), line 30, to delete "misbehavour" and substitute "misbehaviour".
Amendment agreed to.
Question proposed: "That section 61, as amended, stand part of the Bill."
Regarding membership of the Ombudsman Commission, we go beyond the provisions applying to a High Court judge under the Constitution. As I recollect from recent times, the Constitution only provides for stated misbehaviour and incapacity. In this case, bankruptcy is provided for, which raises several issues. A situation may arise where a judge could be removed as a member of the Ombudsman Commission but not as a judge. Bankruptcy is not a ground for removing a judge.
I am also intrigued by the provision that a person ceases to be a member of the Ombudsman Commission as soon as he or she is nominated as a Member of Seanad Éireann. An individual's nomination to the Seanad could involve the Association of Garda Sergeants and Inspectors or the Munster Agricultural Society. It strikes me as odd that a mere nomination, as opposed to election, determines this.
Section 61(3)(b) provides for a nomination to stand as a candidate but section 61(3)(a) refers to a Taoiseach’s nomination.
Therefore, the first refers to the Taoiseach's 11 nominations to the Seanad while the other concerns an individual being nominated to stand by, say, the Munster Agricultural Society.
Yes.
Section 61(3)(c) concerns Part XIII of the Second Schedule to the European Parliament Elections Act 1997 to fill a vacancy. I presume this refers to an individual on the “B” list. To be on this list, the individual would have to be officially put forward in the election and be on the notice of ballot, as opposed to the ballot paper. Is it appropriate for an individual who was in opposition?
I will examine this issue between now and Report Stage. It is a standard provision but it may be that an individual's mere presence on the slate would detract from his or her perceived impartiality on the commission.
The perception of independence might in some way be damaged.
The public may not like a situation where an individual serving on the commission has the option of joining the European Parliament if a serving MEP fell off a bus in Brussels. I will examine the matter again.
The bankruptcy issue intrigues me.
I have not thought about it too much. However, I am not clear whether being a bankrupt is covered under statute which disqualifies one from being a judge. It is not mentioned in the Constitution.
A bankrupt is disqualified from becoming a Deputy.
Allowing oneself to become bankrupt may amount to stated misbehaviour. However, one could become a bankrupt through no fault of one's own. Take the example of someone for whom an individual was vicariously liable and he or she injured another person. If one's gardener hit an individual with a spade and broke his or her neck, one could be in trouble.
One's gardener.
I am merely pointing to a discrepancy between the different commissions in case it may cause problems in the future.
An individual is excluded from the commission if he or she stands as a candidate for election to either House of the Oireachtas. However, an individual is only excluded if he or she successfully stands as a candidate for election to a local authority. The principle should remain the same for all elected positions.
I will examine this issue again. I may insert the words "nominated to stand as a candidate for election to a local authority".
Perhaps we might insert the words "is nominated as a director of an associated bank". It is good for the goose.
We will have a laundry list for exclusion.
What about a prison sentence?
It should not just be the term "elected". One can also be co-opted onto a local authority.
That may be where we are going.
Question put and agreed to.
Section 62 agreed to.
SECTION 63.
Question proposed: "That section 63 stand part of the Bill."
This is the first section where the Department of Finance kicks in. Section 63(1) states: "The Ombudsman Commission may appoint such numbers of persons as its officers as may be approved by the Minister with the consent of the Minister for Finance". Section 63(2) states that not only will the numbers be determined but also the grades and the number of officers in each grade. Whatever else, for the Ombudsman Commission to work effectively and efficiently, it must have sufficient personnel. Any Minister for Finance can cut the budget for the commission and thereby make staff redundant.
Effectively, therefore, the Minister for Finance could spancel the work of the Ombudsman by means of a cost initiative. If the commission is unable to carry out its work, we will return to the old mechanism, the complaints procedure, which did not work. It should be possible to leave the Minister for Finance — whom the Minister for Justice, Equality and Law Reform would like left out of everything — out of this.
Is the Deputy indicating that he will table an amendment on Report Stage to delete the words "Minister for Finance" in this section?
I would first like to hear the Minister's reply. This is the most serious issue of contention. How can we be sure the Ombudsman Commission will be able to conduct its business? There is nothing in the legislation to indicate the minimum it will require to ensure it carries out its duties effectively. Everything is subject to the consent of the Minister for Finance.
This is standard form. The Minister for Finance is a constitutional officer and one of the only Ministers referred to by title in the Constitution. He cannot be a Minister in the Seanad. One of the functions of the Minister for Finance is to control the finances of the State. We cannot have statutory bodies free to make appointments which are paid for from the public purse without accountability linked to the Minister for Finance. As this is a linchpin of the Constitution, leaving out the Minister is not an option. On one occasion, my good colleague, the Minister for Finance, Deputy Cowen, used the phrase "If in doubt, leave them out" but I have forgiven him for that. I fully support the notion of the Department of Finance having this control. If it were not the case, the public accounts and public accountability would begin to disintegrate.
While I fully support the Minister's comments, I do not like provisions which are subject to the consent of the Minister for Finance. Could there not be provision to the effect that the Ombudsman Commission shall have sufficient personnel and resources to carry out its works, followed by the caveat that the consent of the Minister for Finance is required? In other words, could we not have the assertion followed by the caveat? If the caveat is necessary in all cases, perhaps my proposal would help the Minister to strengthen his hand and those of future Ministers for Justice, Equality and Law Reform.
Does the Deputy propose to table an amendment on this issue because the section is immutable?
Will the Minister accept an amendment?
Question put and agreed to.
SECTION 64.
Question proposed: "That section 64 stand part of the Bill."
We are providing in section 63 for the commission to appoint its staff subject to obtaining approval at ministerial level in respect of numbers and so forth. In this section, however, the Bill provides that the Ombudsman Commission must take on the staff of the Garda Síochána Complaints Board, regardless of whether it wishes to do so. I am not pointing a finger at the current employees of the board because the problems associated with the body have nothing to do with its staff. Like any other organisation, the board will have good and not so good staff. Are we insisting that the independent Ombudsman Commission employ all the staff of the board without any by or leave? The section indicates that every member of the Garda Síochána Complaints Board staff can be transferred to the Ombudsman Commission. Does this remove all discretion on the part of the Ombudsman Commission regarding the transfer of existing staff from the board?
The Minister is to notify a trade union or staff association of his intent to make any such order and to consider any representations which are made. I would have thought he would need to notify the staff associations if he decided not to transfer a staff member who may want to be transferred to the new commission. This is a minor point. My main point relates to the powers and independence of the commission, given that it appears to be obligated, if the Minister so decides, to take on transferred staff without any by or leave.
Perhaps the Minister will give us an idea of the number of staff employed in the Garda Síochána Complaints Board and the number of these who are civilian or serving or seconded members of the Garda. It appears somewhat strange to include in the legislation a broad statement that the entire staff of Garda complaints body will be designated, by order of the Minister, as officers of the Ombudsman Commission. Although one would expect some link between the bodies, under this section one could effectively create a similar body. If one does not know how many new officers will join the commission and one transfers one corporate operation with the same personnel into another corporate entity, all one will have is the same entity managed by three persons instead of the chairman of the Garda Síochána Complaints Board. What would be the essential difference between the new and old mechanisms?
If the Minister for Finance has full control over the recruitment of additional personnel, we could find ourselves left for a long time with the existing complaints board operating in the Ombudsman Commission's office, with nothing having changed except that we have three persons, either two men and a woman or vice versa, presiding over the operation, as distinct from a chairperson.
Will the chairperson of the Garda Síochána Complaints Board also transfer if he so wishes? Will he be part of the staff or is he regarded as a temporary appointment to the board? Will the Minister clarify precisely what is likely to happen on 1 January?
I have concerns about this section. This matter should be dealt with separately. I presume employees of the Garda Síochána Complaints Board are civil servants. If the body for which they work becomes defunct, they automatically come under the powers of the Minister for Finance and can, therefore, apply in the normal fashion to join other Departments. In this case they, like others, could apply for positions under section 63.
I am aware that Schedule 2 applies to transferring staff. From dealing with Bord na Gaeilge, when it was changing to Foras na Gaeilge — I was in that boat at the time — I am aware that taking a rigid approach to designating people who have a position in the Civil Service or public service to another position can result in a protracted process. Perhaps staff matters flowing from the dissolution of the Garda Síochána Complaints Board should be kept separate from this legislation and dealt with in a separate, shorter Bill.
We have not covered every angle. I could also go through the Schedule and point out some problems I see with it. However, as far as this is concerned, our best bet is to delete the section. The staff should be returned to the Civil Service where they would have the right, as civil servants, to apply for whatever positions within the Civil Service suit their capacity, training and work practices in a manner similar to other civil servants.
Section 2 provides for commencement orders. It also provides that repeals of certain provisions of section 1 can, for different purposes, be carried out by separate orders. It is, therefore, envisaged that the repeal of the Garda Síochána (Complaints) Act 1986 contained in Schedule 1 will not take place on an instantaneous basis because there will be outstanding complaints which must be dealt with by the existing complaints authority. They will not be simply transferred holus bolus to the new commission because there will be work in progress. Consequently, it is likely that the two bodies will continue in parallel for a transitional period while the current commission rids itself of its caseload.
I spoke to the chairman of the current commission today and he informed me that, to a great extent, the caseload has been dealt with and that the outstanding cases are greatly reduced in number. Nevertheless, it is quite clear, particularly with judicial reviews in progress, that the body cannot be wound up completely in the near future.
Section 64 is purely an enabling section which allows for the transfer of people. It is not a self-executing transfer by statute. It simply allows the Minister to move those who wish to go from one body to the other. As the Deputies have correctly surmised, the people in question are civil servants on secondment from the Department of Justice, Equality and Law Reform to the Garda Síochána Complaints Board. Some of them may not wish to remain in this area at all but may wish to return to the Department.
The committee will also be aware that some of the office functions of the complaints board have already been designated as liable for decentralisation by a Government decision.
We know that. From where will the commission operate?
I imagine it will operate from more than one location. Although it is essential that it should have a base in Dublin, it would be good if some of its support activities could be carried on outside of Dublin. That flexibility is there and is a matter for further consideration. In a spirit of partnership, no one will be forced to do anything he or she does not want to do. Anyone who is moved will retain the same entitlements in the new situation as he or she held in the old. These are standard arrangements when people are moved from one body to another.
I understand the point regarding the clearance of outstanding cases. Will there be a situation where the commission will have staff allocated to it by way of transfer from the old complaints body?
I have the power to move them from A to B.
Is this done with the consent or approval of the Ombudsman Commission? Will the commission have any say in the matter because, under section 63, it makes the appointments?
In my view, nothing should be done against the commission's wishes. This is not in substitution for its independent decision on these matters. If the commission looks at a particular staff member and decides that it does not want that person, I will not override its view. Arguably, I cannot do so because section 63 is clear on the issue.
Can the Minister indicate the number of people who work for the complaints board?
At present, 25 administrative staff work in the Garda Síochána Complaints Board. By way of comparison, the Northern Ireland Police Ombudsman, Nuala O'Loan, started on 6 November 2000 with approximately 60 staff. The numbers in that office have risen gradually to 125 over three years. Her report makes it clear how her staff has grown. One cannot simply click one's fingers and produce a massive number of people.
If we have three ombudsmen, will we have three times the number of staff?
On the contrary, having three ombudsmen should reduce the need for staff.
The North only has six counties. We have 26 with which to deal.
Will the Minister for Finance be of the view that these appointments cut across the public service embargo? Will the staff be additional or will the commission be obliged to wait for vacancies to arise?
I will argue that this should be outside of the public service embargo. Undoubtedly, however, the Minister for Finance will state that I must find corresponding reductions somewhere in the justice "family". As there are 22,000 to 24,000 people in the justice family, I presume that the Department of Finance will tell me that I must find vacancies elsewhere.
The Minister provided the figures for Nuala O'Loan's office. Is he considering approximately the same number or more, given the greater population of the Republic? Can he provide any indication?
I have gone on record to state that I believe 70 people will be involved.
I asked the Minister a question but I have not received an answer. There are 25 administrative staff in place at the complaints board. Are there other staff apart from them? In other words, are gardaí or retired gardaí seconded to the Garda Síochána Complaints Board?
Regarding section 64(1), will the Minister re-examine the wording "Every member of the staff". This phrase disconcerted all members of the committee. Perhaps it would be to use a wording such as "Any member of the staff of the Department of Justice, Equality and Law Reform who on the establishment day is engaged in duties in the Garda Síochána Complaints Board may be designated". The phrase "Every member of the staff" is probably grammatically incorrect in its application here.
To what line is Deputy Costello referring?
I am trying to improve the language. I refer to the first word of line 64. I have suggested to the Minister that the phrase "every member" threw the committee off and is probably an incorrect word.
The word "Any" would have been——
It should read "Any member of the staff of the Department of Justice, Equality and Law Reform who on the establishment day is engaged in duties in the Garda Síochána Complaints Board may be designated".
I will examine it.
Such a wording would have given a better picture.
Are any figures pertaining to the number of gardaí involved available for Deputy Costello?
No. That is a misunderstanding. At present, the Garda Síochána Complaints Board does not have any gardaí. If it wants to investigate a matter, it must go to the Garda and it uses serving members of the Garda Síochána. However, it does not have Garda members on its office staff.
As they are not staff members, one is not talking about anyone being seconded who would already be working with the Garda Síochána Complaints Board.
Question put and agreed to.
Section 65 agreed to.
SECTION 66.
Question proposed: "That section 66 stand part of the Bill."
This section states the Ombudsman Commission may enter into an arrangement for the engagement of members of the Garda Síochána or from outside the force. What does the Minister have in mind?
This section provides for special assistance for the Ombudsman's Commission. Subsection (2) provides for arrangements for engaging persons under the section, whether on contract or otherwise, for a period of temporary service with the commission.
Subsection (3) states:
If designated by the Ombudsman Commission for the purpose of conduction of an investigation under section 90 or under that section as applied by section 94, a person who is a member of the Garda Síochána or another police service and who is engaged under this section for a period of temporary service with the Commission, has, in relation to that investigation, only the powers, immunities and privileges conferred and the duties imposed under sections 90 and 91.
If the Deputy looks at sections 90 and 91-——
The point made in subsection (4) is that during a period of temporary service with the Ombudsman Commission, a garda is not subject to the direction or control of the Garda Commissioner.
Such a garda is then under the control of the Ombudsman Commission rather than the Garda Commissioner.
An option open to the Ombudsman Commission is to engage a member of the Garda Síochána on a temporary contract, in which case the garda will no longer owes his or her duty of obedience to the Garda Commissioner but will be a servant of the commission.
It is a temporary contract that allows members of the Garda Síochána under the rank of Garda Commissioner to enter into a such contract with the Ombudsman Commission, during which period he or she will be not subject to the Garda Commissioner but will continue to be paid as a member of the Garda Síochána. Is this an interim measure until such time as the Ombudsman Commission has its full quota of staff or will it be an ongoing measure? I would like to get a flavour of the Minister's thinking. Does he intend that gardaí will be seconded to this role?
The intention is that it will be temporary, for provisional use, either at the beginning or on occasions of temporary emergency.
Is this a measure that would suit the Minister for Finance, as the person concerned will be entitled to be paid as a member of the Garda Síochána and there will be no need to recruit new persons?
That depends on what the Deputy considers to be the view of the Minister for Finance on the matter. The Minister for Finance might think the pension liability of the member of the Garda Síochána will continue to accrue, yet he will not get value out of the person concerned.
I can make a reasonable and logical deduction that the Minister for Finance will not want to recruit new personnel for the job. There are 25 employed currently but the number employed in this role in Northern Ireland is 125. Therefore, it is reasonable to assume that approximately 100 new staff will be required.
The reason I am raising this issue is that there will be a question of providing resources for the additional personnel. If we must fall back on special assistance, as provided for in this section, we may find that we will fall back on the secondment of gardaí who will be paid as members of the Garda Síochána and will be entitled to return to their primary role. That is not satisfactory, unless it is a temporary arrangement. There is nothing in the Bill to state it might be temporary, other than that the service contract might be temporary, yet this could be an integral part of the recruitment of staff.
I have explained it is a special provision. It is necessary to have such a provision. Let us imagine the difficulties that the Ombudsman Commission might find itself with in circumstances where it is difficult to establish the body or it was suddenly stuck with an absence of manpower in circumstances where it badly wanted to do this. It is better to leave the section in its present form.
We need to ensure the arrangement is seen to be above criticism.
There is an interesting figure, of which I am reminded. In Northern Ireland there are 3,000 complaints made per annum to the police ombudsman — one can draw a number of inferences from this — and 1,400 to the Garda Síochána Complaints Board. That may be a reflection of the public perception of the efficacy of the board. I fully accept that point.
The numbers will probably increase when the Ombudsman Commission is established.
The numbers will increase.
The 1988 statute establishing the police ombudsman in Northern Ireland provides that the ombudsman and the PSNI Chief Constable may enter into arrangements for members of the police force to be engaged for a period of temporary service with the ombudsman. I am not doing something that Nuala O'Loan cannot do under the statute for her office.
We do not necessarily have to go along with what Nuala O'Loan is doing. We want to ensure transparency for the Ombudsman Commission.
I do not have a problem with section 66(1)(a) and what flows from it. I presume, however, that it would be difficult for the Ombudsman Commission to have the same relationship with members of a police service outside the State as is provided for in section 66(1)(b). The gardaí seconded to the commission will be under its direct control, whereas police officers from outside the State could be under the direction and control of their superior. Was this point considered?
Provision could be made for this in the contract. It is very difficult for the Minister for Justice, Equality and Law Reform to start to legislate for chains of command for police services outside the State. While I agree this is a theoretical problem, it could be provided for in the agreement that the person concerned would be subject to the control of the Ombudsman Commission.
Question put and agreed to.
SECTION 67.
Question proposed: "That section 67 stand part of the Bill."
There appears to be a conflict in the way in which sections 67 and 91 are formulated. Section 91 deals with searches of Garda stations. Section 91(1) states: "Subject to this section, a designed officer directed by the Ombudsman Commission to investigate a complaint under section 90 may carry out a search of a Garda Síochána station . . .”. However, section 67(2) states: “Functions under sections 91 and 100 may not be delegated to anyone other than a member of the Ombudsman Commission.” Is there a conflict between the two sections?
Section 67(2) must be construed in accordance with subsection (1). Therefore, "functions" means the functions of the Ombudsman Commission. It does not mean the functions of anybody else.
That is clear as mud. Under section 91, is it envisaged that members of the ombudsman commission will carry out the searches of Garda stations?
No, they will not have to search. Designated officers, directed by the ombudsman commission, may carry out searches.
However, section 67(2) states "Functions under sections 91 and 100 may not be delegated to anyone other than a member of the Ombudsman Commission.”
The Ombudsman Commission could not delegate to one of its staff the right to authorise a person to enter a police station. One could not have an officer of the commission delegating or making a direction under that section without the knowledge of the commissioners. In other words, a member of the investigative staff cannot enter a Garda station and cannot authorise any other officer to do so. No member of the administrative staff of the commission can issue such authorisation, it must be issued by the commission itself.
Should the wording of section 67(2) be changed so that "by" is inserted instead of "to". It would, therefore, read "Functions under sections 91 and 100 may not be delegated by anyone other than a member of the Ombudsman Commission.”
I will re-examine it.
My reading of the section is that the only person who could search the Garda station would be a member of the commission. Clearly that is not the intent. Perhaps the Minister will consider the wording used to see if it needs to be tightened up.
Delegation is different from authorisation. If I tell somebody to search a station, I am not delegating a power of search of a station, I am authorising the search of a station. Section 67(2) provides that "Functions under sections 91 and 100 may not be delegated to anyone other than a member of the Ombudsman Commission.” The three members could delegate, to one or two of their number, the right to make such an authorisation under section 91.
That is not clear as matters stand.
Question put and agreed to.
Sections 68 and 69 agreed to.
SECTION 70.
Amendments Nos. 72 and 73 are related and may be discussed together.
I move amendment No. 72:
In page 46, subsection (1)(d)(ii), line 16, to delete “in so far as it” and substitute the following:
"that is laid before Dáil Éireann in so far as the report".
These are technical drafting amendments advised by Parliamentary Counsel to improve the text.
Amendment agreed to.
I move amendment No. 73:
In page 46, subsection (1)(d)(ii), lines 17 and 18, to delete “that is laid before Dáil Eireann”.
Amendment agreed to.
Amendments Nos. 74 and 77 are related and may be discussed together.
I move amendment No. 74:
In page 46, subsection (2), lines 21 to 23, to delete paragraph (a).
In amendment No. 74, I am seeking to delete section 70(2)(a) which states that a member of the Ombudsman Commission who gives evidence 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.” Amendment No. 77 is somewhat similar and seeks to delete section 71(10) which reads:
In carrying out duties under this section, a member of the Ombudsman Commission 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.
These provisions are somewhat harsh. I know the Minister's response will be that the Government does not want the Ombudsman Commission — or anybody else — drawing up Government policy, particularly as its function is to carry out that policy. The system is more complicated than that and it should be allowed to express an opinion on the merits of a new policy and the objectives thereof. What will be the position if a member of the Ombudsman Commission comes before the Committee of Public Accounts and is questioned by a particular member of that committee? The member of the commission will not be allowed to express an opinion. It seems that the Ombudsman Commission will be able to give very limited information to the Committee of Public Accounts on policy matters and objectives. It is difficult to determine the level of expenditure if one is not able to examine and express an opinion on the merits of the objectives of the various policies adopted by Ministers and Governments. This seems to be an effort to gag the Ombudsman Commission because it will only be able to provide minimal information for the Committee of Public Accounts.
The Committee of Public Accounts never questions the merits of Government policy because it is not part of its terms of reference.
Let us not say then that members of the commission should question policy but that they should express opinions, state what are the objectives, etc.
This is an absolutely standard provision. The Committee of Public Accounts has a limited purpose and it is not a policy-making body. In this section, we are rendering one of the members of this independent commission liable to be brought before the Committee of Public Accounts to account for the expenditure of the commission.
What Deputy Costello is seeking falls outside the terms of reference of the Committee of Public Accounts in the first instance.
The PAC should not be allowed to ask those questions in the first instance. We are making one of the commissioners liable to answer questions about the finances of the commission. The same provisions apply to the Human Rights Commission. When members of that commission come before the Committee of Public Accounts, they cannot become involved in political debate. The Ombudsman for Children and the Equality Authority operate on the same basis.
I explained to the Seanad that the reason for the provision is that politics is a competitive business and it would clearly be significantly advantageous to somebody who disagreed with the Government to recruit important independent bodies to his or her cause. I have no doubt that if we did not have such a provision for bodies such as the commission, people would call on it to agree that what the Government is doing is wrong and it would then be drawn into conflict. I also have no doubt that some of its interrogators at the PAC would have a political interest in recruiting the commission, so to speak, to their cause. It is better that bodies, in the context of being accountable to the Committee of Public Accounts, should stay out of day to day politics and not get sucked into policy debates.
I understand the need for sections 70(2)(a) and 71(10). However, I would add to the end of each the phrase “save and except for as it relates to a finding under section 98”. Members of the commission should be able to give evidence, in terms of a finding under section 98, in instances where they are examining certain practices, policies and procedures of the Garda Síochána. That might be the only area in respect of which they should be allowed to express opinions.
Deputy Ó Snodaigh made a very good point. The Minister may request the Ombudsman Commission to examine practice, policy or procedures. Where the commission has been invited and requested specifically to look into policies and procedures, it is still not allowed to express an opinion before the Committee of Public Accounts, even though the relevant Minister has made a specific request to it to express opinions, examine and publish. This seems to be an anomaly. Perhaps there should be a caveat in section 70(2) to allow the commission to accede to the request of the Minister.
Section 98(5) gives the Minister a right to publish in full or in part. However, that does not place an obligation on the Minister to do so. The Minister can ask the Ombudsman Commission for a report but the Minister might decide not to publish it.
The Minister for Justice, Equality and Law Reform will not be before the Committee of Public Accounts and nothing may have been published. Nevertheless, a great deal of work may have been done at his instigation.
As the Deputy knows, the Committee of Public Accounts is there to ensure money is properly accounted for and disbursed, not to investigate issues of general Government policy.
Section 98(1) states: "For the purpose of preventing complaints arising in relation to a practice, policy or procedure of the Garda Síochána or of reducing the incidence of such complaints . . .". That could be a matter for the Committee of Public Account to call on the Ombudsman Commission to comment on its role in making the Garda Síochána more efficient. The commission might wish to make a recommendation to the Minister.
We are closer to the inspectorate's powers which deal with efficiency and effectiveness. In the context of a body coming into daily contact with particular problems with the force which give rise to complaints, the Minister is given a power to ask the commission to address the reason certain incidences of misbehaviour are happening and what can be done to stop them. That is not an issue for the Committee of Public Accounts.
We are discussing two amendments. Would it not be appropriate for the Ombudsman Commission to appear before the Joint Committee on Justice, Equality, Defence and Women's Rights having examined, at the request of the Minister, practice, policy or procedures with a view to reducing the incidence of such complaints? It seems strange that the Minister may ask the commission to examine certain matters and that another section of the Bill forbids the committee to ask the commission to express a view on matters on which it had reported to the Minister for Justice, Equality and Law Reform.
The purpose of section 71, as set out in subsection (2), is to account for the general administration of the commission, not problems arising on a systemic basis in the Garda Síochána.
We seem to be discussing sections 70 and 71 together. Section 70 states that a member of the Ombudsman Commission who gives evidence under the section to the Committee of Public Accounts shall not "provide information that might facilitate the commission of an offence". Section 71 provides that when appearing before other committees, the Ombudsman Commission is similarly precluded from discussing the merits or objectives of policy but is not precluded from providing information that might facilitate the commission of an offence. Does this indicate, by implication, that it is so entitled? Why is there no preclusion about providing information that might facilitate the commission of an offence in section 71 when it is so provided for in section 70?
A good point.
That will be examined before Report Stage.
I am not suggesting for one moment that the commission should facilitate the commission of an offence.
Divine inspiration is hitting the Deputy.
Returning to the substantive amendment tabled by Deputy Costello.
There is merit in my amendment. The provisions in the legislation that I am seeking to delete seem to go overboard in curtailing the ability of the Ombudsman Commission to speak out openly and clearly. It seems there is no reason it should not be able to give an opinion on policies and practices, especially if the Minister had requested it to look at a practice and if it prevents or reduces the number of complaints about practice or policy which, in turn, may save money.
There is a tendency in Ireland to think that the views of an independent body are better than those of Deputy Costello. If the Deputy can get somebody who wears a badge to agree with his views, his views become better on that account. Why not leave such people out of the debate? I agree with the Deputy that it is undoubtedly helpful in the mindset of the media if somebody wearing the Ombudsman's hat agrees with one Member rather another. The media go down on their knees when an independent person has come to the same conclusion as one side of an argument. As politicians, we should face down the attitude in the media that it is significant if the Ombudsman, Ms Emily O'Reilly, for example, has a view on a policy issue but it is insignificant if Deputies Jim O'Keeffe or Costello have one. We must pay homage to officeholders' opinions but the opinion of those who hold office as a representative of the people does not matter. Our opinions are seen as the usual old guff. That is the attitude in so much public commentary in Ireland that it is time Members stood up for the value of their opinions which at least carry a mandate.
Nobody except the Minister mentioned the media. It is 9 p.m. and we are in a committee room, down in a bunker. There is no media interest.
The members of the media have gone home. They gave up long ago.
We are doing our duty as committee members. It has nothing to do with the media.
I am making a different point, namely, that so often in Irish political discourse a good point only becomes reportable or creditworthy when it is attributed to a non-elected person who is supposed to be above, and better than, politicians. I am a republican and a democrat and I believe that a view expressed by an elected politician should carry more clout in most cases than one expressed by officeholders who have no mandate from the people.
They are usually appointed.
The media operates on the basis that it expects certain comments to be made by Ministers and members of the Opposition.
That is the exact syndrome about which I am talking. Members of the media fall down on their faces and adore somebody whose job is not to express those views when he or she steps out of line and expresses them.
I do not know what the Minister is talking about. None of that has any relevance to what I am saying.
The Minister is saying that Opposition politicians should have faith in themselves.
Of course, they have faith. I am talking about a committee, not an individual politician. All of those committees are entitled to invite the Ombudsman Commission to come before them. It is a matter of accountability to Oireachtas committees. We should be entitled to put in place the maximum possible level of questioning on the work of the body. That is from where I am coming.
Amendment put and declared lost.
Section 70, as amended, agreed to.
SECTION 71.
I move amendment No. 75:
In page 46, subsection (3), line 40, to delete "has been".
Section 71(3) states that a member of the Ombudsman Commission shall not be required to give account before a committee for any matter that is, has been or may at a future time be, the subject of proceedings before a court or tribunal in the State. All my amendment proposes is the deletion of the words "has been". There are some grounds for including a matter that is or may at a future time be before a court or tribunal. What are the grounds for including a matter which has been the subject of such proceedings? It would seem that there is no opportunity to comment on something that happened in the past. Apart from the obvious confidential matters of privacy, etc., can the policy matters not be commented on? The section states that the member of the Ombudsman Commission shall not be required to give account before a committee for any matter that has been the subject of such proceedings.
Deputy Costello should allow us to hear the Minister's response because he might accept the amendment.
There are lessons to be learned from what has happened in the past.
I shall examine the position between now and Report Stage. The fact that it includes any matter that has been the subject of a court may be unduly restrictive.
Amendment, by leave, withdrawn.
I move amendment No. 76:
In page 47, subsection (9), line 20, to delete "subsection" and substitute "subsection (3)”.
This is a technical amendment.
Amendment agreed to.
I move amendment No. 77:
In page 47, lines 23 to 26, to delete subsection (10).
Amendment put and declared lost.
Question proposed: "That section 71, as amended, stand part of the Bill."
There is an issue about the lack of consistency between the——
I shall table an amendment to subsection (10) to make it correspond to section 70(2).
That is fair enough.
Question put and agreed to.
SECTION 72.
Question proposed: "That section 72 stand part of the Bill."
Section 72(4) states that at the end of each five-year period the ombudsman commission would submit to the Minister a report reviewing the general performance of its functions. The Bill should explain what that report should include. For example, it should include statistics — including trends and patterns — any such analysis or use as the ombudsman commission would see fit and, if necessary, details on matters of national security.
I wish to make two points. First, the reports referred to in the earlier subsections will be made to the Minister who shall, as soon as practicable, lay them before each House of the Oireachtas. It is really a question of what is meant by "as soon as practicable". There have been certain suggestions that the publication of reports received from the Inspector of Prisons, for example, have been unduly delayed. I would not want a similar occurrence to arise here.
While there are a number of reports referred to in subsections (1) to (4) which are to be published as soon as practicable, subsection (6) states that the commission "may make any other reports". My question is whether subsection (5), which relates to the laying of reports before the House, similarly applies to subsection (6). It could be construed that it does not because of the positioning of that subsection.
I shall transpose subsections (5) and (6). It would look better. Subsection (6) looks as if it is an addendum.
That would solve that issue as far as I am concerned. What of my question about publishing as soon as practicable?
The Deputy raised the question of the reports of the Inspector of Prisons. There was, for example, a particular difficulty with his report for last year. In the case of this year, I am anxious to get it into the public domain but under the official languages legislation I am awaiting an Irish translation. I have a legal duty to publish in both languages.
How long will that take?
It will take approximately three weeks. I will have it quickly but this is part of the rubric of equality for both of the national languages.
The resources should be in place so that it can be done in a much shorter period.
I was under the impression that in the case of the Inspector of Prisons, the comments about delays that emerged did not seem to apply to the language issue.
No. It was language of a different kind. My good friend, the inspector, would appreciate what I am talking about.
Question put and agreed to.
SECTION 73.
Amendments Nos. 78 and 79 are related and may be discussed together.
I move amendment No. 78:
In page 48, subsection (4)(a), between lines 42 and 43, to insert the following:
"(ii) an officer of a police ombudsman or comparable body, outside the State,".
The subsection to which this amendment refers provides that there is no prohibition on a person disclosing information if the disclosure is made to certain people or bodies, namely, the Garda Commissioner, the Minister, the Attorney General, the DPP, the Chief State Solicitor, the CAB, the Comptroller and Auditor General, the Revenue Commissioners or a member of either of the Houses of the Oireachtas where relevant to the proper discharge of that member's functions. My amendment suggests that it should also be possible to provide for disclosure to "an officer of a police ombudsman or comparable body, outside the State". My thoughts are of encouraging co-operation between the State and police organisations abroad. In particular, they are focused, perhaps, on a police ombudsman in another country.
I am slightly concerned that section 73, as it is currently framed, might inhibit the type of co-operation to which I refer. If, for example, the ombudsman commission was meeting its Norwegian counterpart with a view to exchanging information about their experiences, its members might feel inhibited or they might, under this section, be deemed guilty of an offence. If the Minister would consider the matter from that point of view, I would be satisfied. I do not wish to press the issue unduly.
My amendment arises because the Garda inspectorate came late in the legislative process and it was considered that its officers should be in a position to have access to information.
All information obtained in the line of duty by an officer of the State is subject to the Official Secrets Act 1963. Does that Act contain conditions on disclosure, particularly if the latter is likely to have a harmful effect? Is there a general statement to the effect that all information obtained by a member of the Garda or, in this instance, a member of the ombudsman commission, is confidential and, therefore, cannot be disclosed?
The Official Secrets Act has two tiers of operation, one of which relates to official information. It is an offence to disclose official information per se. Official information is any information which is in the possession of a public servant arising out of the course of his or her duty. It is an offence to reveal such information unless its disclosure has been authorised. For example, a Minister may always disclose official information but others may not. In the case of serious indictable offences under the Official Secrets Act, these must involve the disclosure of information which jeopardises the security of the State.
The Bill provides for an indictable offence in respect of the disclosure of information in harmful circumstances. The Bill confers a right to apply for search warrants and also a right to arrest and question people. This arose from the fact that the Garda Commissioner reported some time ago to my predecessor and to me, as Attorney General, that the person who preceded me as Attorney General, Mr. David Byrne, had raised the issue of the unauthorised disclosure of Garda information. At the time, the Garda Commissioner made the point that as long as he had to rely on the Official Secrets Act, he had no real method of investigating because the summary offence did not give any powers of investigation and he was effectively left with no way to discover who was leaking Garda information and no real prospect of doing so unless an issue relating to the security of the State was involved.
The committee will be aware that when I originally published the draft heads of this legislation, I indicated that I was going to deal with the question of unauthorised leaking of information by members of the force and the same must obviously apply to members of the commission. The position is simply that we have refined it to make it a fair section which is no longer subject to any major criticism.
Only a tiny handful of people disclosed information. I am not suggesting that it was a widespread practice but there were some who knowingly gave confidential information to people who would publish it in circumstances where it did immense damage to private individuals. It was unfair that this happened. People's sexual histories were the subject of publicity in these circumstances. I want to make it clear that, being a disciplined force, the Garda Síochána has immense powers to ask questions, discover information, search people's houses, arrest, detain and, in certain instances, oblige individuals to answer questions. In the circumstances to which I refer, there is a correlative duty to observe confidentiality. Where that duty is breached with harmful effect, we must take a serious view of the matter.
I suggested a similar provision when we dealt with the confidentiality aspect and proposed that we include another subsection — which might cover some of that to which other Deputies referred — to the effect that such disclosures are made, in good faith, with a view to either preventing the commission of an offence or the infringement of somebody's rights or to disclosing such an offence or a breach of rights. While that would be my only caveat, I agree with what the Minister stated.
Although I did not want to open up the debate on the leaking of information to the media, I must ask the following question. In recent days, every time one opened a newspaper one read a different account of what happened at Lusk. It was stated that there was an exchange of shots and that there were six robbers. Then it was stated that there were only three robbers and that a certain number were arrested. Garda sources were regularly mentioned in the media reports. Is that harmful to the Garda investigation?
Any day of the week one could hardly open a newspaper which did not contain information on a criminal investigation which had emanated from the Garda. In the article on Mrs. Rachel O'Reilly in the Evening Herald yesterday, the Garda is again taking this action. The article in question stated that the Garda has the culprit or that it is close to a breakthrough. There have been similar leakages in recent months where assertions were made that emanated from Garda sources. The Minister could spend his life investigating leaks which arise every day in the media. How does he decide whether the disclosure of information is likely to have a harmful effect and whether he will start an investigation which would lead to the imposition of the penalties outlined here?
I wish to return to my original point, which is not quite related. In the provisions of the Official Secrets Act, which are additional to those of this legislation, the only stipulation is where it is an indictable offence. This legislation stipulates a summary offence as well as an indictable offence. That is the only time when the Minister is talking about an investigation being jeopardised, whereas section 73 relates to any disclosure of information likely to have a harmful effect. In other words, there are different stipulations in the two items of legislation. If there is no stipulation in the case of a summary offence in the Official Secrets Act, how could this then be an addition to that Act?
My third point relates to what we discussed on section 55 in respect of the Garda Síochána and the disclosure of information. Section 73(4)(a)(ix) refers to the disclosure of information to “a member of either of the Houses of the Oireachtas where relevant to the proper discharge of that member’s functions”. What does that mean? The question we raised earlier regarding a previous occasion when Members of the House were supplied with information and the State went to court to get them to disclose the sources of that information again arises.
This House has a committee which took advice on that and I cannot get into the business of second guessing.
We do not expect that of the Minister. We expect that new legislation will not leave Members of the Houses liable to legal action being taken against them if information is supplied to them.
Members of this House have constitutional entitlements and the statute cannot affect them. This refers to a member or officer of the Ombudsman Commission disclosing information. The circumstances in which they can and cannot disclose information are set out here. In bringing in rules for members of the Garda Síochána, it is important to ensure that those who police members of the Garda Síochána — who arrest them, search their houses and ask them questions with all the powers of a member of the Garda Síochána — will be subject to the same ethical standards as members of the force.
I mentioned three points. The first relates to disclosure of information by the Garda Síochána. Every day information appears in the newspapers which, to a reasonable person, could have a harmful effect.
This Bill is not yet law. If the Deputy has a difficulty with anything that is published in the newspapers at present, it is because the Official Secrets Act is weak. The Commissioner stated as much to my predecessor, to me and to the Attorney General, Mr. Byrne, when he indicated that the Official Secrets Act did not provide a fair guarantee of secrecy because breaches of it are, in many instances, effectively uninvestigable.
We are referring to members of the Ombudsman Commission here.
It is a relevant point.
This argument took place with the Minister of State, Deputy Brian Lenihan, on the previous occasion.
I got no answer. It seems very strange.
The Minister of State gave an answer.
I do not see how, once this legislation is passed, any member of the GardaSíochána can speak to the media. Are we to take from that——
Once it does not have harmful effects——
Once there is a mention of Garda sources in an ongoing investigation in a newspaper, does that not immediately trigger action?
The new provisions relate to disclosures with harmful effects. As matters stand, the Official Secrets Act applies to the entire public service and it is unlawful for members of the public service to disclose official information to any person, regardless of whether he or she is a member of the media, unless they are authorised to do so. People argue that this is too broad a brush to use. However, that is the law. We may have to revisit the matter.
Amendment, by leave, withdrawn.
I move amendment No. 79:
In page 49, subsection (4)(a), between lines 1 and 2, to insert the following:
"(viii) the Garda Síochána Inspectorate or an officer of the Inspectorate,".
Amendment agreed to.
Question proposed: "That section 73, as amended, stand part of the Bill."
There is a list in subsection (4) which includes a variety of people to whom disclosure is not prohibited. The subsection refers to various bodies, namely, the Garda Commissioner, a court, a tribunal and so on. Should we also include a commission of investigation?
Question put and agreed to.
NEW SECTION.
I move amendment No. 80:
In page 49, before section 74, but in Part 3, to insert the following new section:
"74.—Notwithstanding sections 55 and 73, the exchange of any type of information or other form of co-operation between—
(a) the Garda Commissioner or any member of the Gardaí and the Ombudsman Commission,
(b) the Garda Commissioner or any member of the Gardaí and the Inspectorate,
(c) the Ombudsman Commission and a comparable body outside the State,
made in the course of, and in accordance with, the duties of that person's office, shall not be an offence.".
This amendment relates to our earlier discussion on allowing the Ombudsman Commission to co-operate in providing, where required, information to an ombudsman of another police force.
I am against this because the Bill was amended in the Seanad to restrict it to cases where harmful effect would arise from the disclosure. We do not, therefore, need to incorporate a further right to give out information which would not have a harmful effect. We should leave it at that.
Amendment, by leave, withdrawn.
Progress reported; Committee to sit again.