I welcome back the Minister for Justice, Equality and Law Reform, Deputy McDowell. We resume consideration of Committee Stage of the Garda Síochána Bill 2004 on Part 4, section 74.
SECTION 74.
Question proposed: "That section 74 stand part of the Bill."
I see no problem with section 74. It is a remarkable coincidence, in the context of the second Morris report, that we should be dealing with Part 4 of the Bill which deals with complaints, investigations and other procedures. I indicated in my response to the report that I would be glad to facilitate the early passage of the Bill. That is probably the best thing we could do in response to the report. We must examine issues that arise. I will confine my remarks to those areas that I feel need to be considered. This section seems in to be order.
I am not as forthcoming as Deputy O'Keeffe. Many issues have been raised by the second Morris tribunal report which has also made recommendations. The Minister has indicated that he intends to introduce at least one amendment. While we should finalise Committee Stage, we should not move on to Report Stage until such time as there is a debate on the second Morris report, if not both reports. It should be debated in the House or certainly by this committee prior to finalising the legislation. I want to put down a marker in that respect.
The Morris tribunal report draws attention to the fact that the first report was never debated. It came out around this time last year and I suppose people thought it would be debated in the autumn but nobody raised the issue at the time. It was not due to unwillingness on my part that it was not debated because there are very significant issues attached to it.
I agree with Deputy Costello that we should now have a debate on the issue in the Houses rather than at this committee. I have indicated to my colleagues at Cabinet that it is my view that this is required and that the Whip should arrange for a debate on the issues that have arisen because it is important that they receive public attention.
I am equally anxious, however we manage it, to pass this Bill into law as quickly as possible — certainly this side of the summer — because there is no point in letting it go beyond that. Some of the issues raised in the Morris report can be addressed only in the context of legislative change. I agree with Deputy Costello that we need to get the legislation right — I assume that is what he is saying — nonetheless there are some areas in respect of which virtually nothing can be done until the Bill is in place. That is why I want to get on with it.
The planning for the Ombudsman Commission must be set in motion. It is not something in respect of which I can click my fingers and there will suddenly be an ombudsman commission. There will be a lead-in time. If it were by any chance to be postponed until the autumn, it would be June of next year before we had an ombudsman commission.
I see no reason to postpone it until the autumn. However, there is not much sense in having a debate after the Bill is passed. The time to have a debate is prior to the finalisation of this legislation in order that we can take the lessons and recommendations properly on board.
To complete that matter, the idea of a debate in the Houses is important as opposed to having one at the committee. There was a review by Deputy Commissioner Fitzgerald and there are to be proposals from the Garda Commissioner. I take it they will be in the public domain. It is important that we have those documents to refer to during the course of the debate.
That is also my view. My planned choreography was that they would be to hand on Tuesday and I would be in a position to lay out all of the proposals at length in a much more formal way as the Garda Síochána has done by way of response to the first report. However, events have a habit of confounding us. Somebody hacked into the website and once I knew the report was effectively in the public domain, it seemed it would be wrong for Members of this House, rather than having it laid before them, to learn about it in a newspaper over the weekend.
Since I said it at a press conference today, let me say here that, having done much thinking on the issue, it had been my firm intention to make provision in the disciplinary regulations for the duty to account. However, the second Morris tribunal report recommended that it be placed on a statutory rather than a regulatory basis. I can see the value of doing so in order that any person going to Tullamore will not have to search the regulations to find it; it will be part of the core foundation of the constitution of the Garda Síochána.
I am signalling to the committee that it is my intention to move an amendment to impose a positive obligation on members of the Garda Síochána to account for their actions as members of the force and to indicate that a failure to do so would be a serious matter warranting dismissal in appropriate cases. There will be, therefore, no doubt as to the intentions of the Legislature. It is, in other words, not a venial sin; it is a mortal sin.
Will we see that amendment soon? Are we too late to deal with it on Committee Stage or is it a matter of signalling intent on Report Stage?
The House is rising for a week and I intend to let my officials spend that time producing all the amendments about which I have been talking. As soon as they are to hand, I will furnish them, on an informal basis and even before Report Stage, to everyone who is interested.
The choreography, from the point of view of the Oireachtas, would be that we would have the proposed Report Stage amendments, a copy of the review by Deputy Commissioner Fitzgerald, a copy of the Commissioner's proposals and the debate in the House. Then we would deal with the Report and Final Stages of the Garda Síochána Bill. Is that correct?
I want Report Stage to be fixed to start on 21 June. I intend to go to the Government Whip to see whether we can get a full day, perhaps a Friday, to discuss the Morris tribunal report in the House. I do not know what are the movements of the party Whips. The sooner that I can do that, the better.
Why does the Minister intend to debate the Morris report on a Friday?
There are other Ministers with very high priority items that they wish to get through before the summer recess.
This is as important as anything that will be discussed before the summer. If it is relegated to a Friday, as the Minister is aware, it will be difficult to get all the Deputies to attend. If time were made available on a Tuesday, Wednesday or Thursday, we would have a much fuller debate.
I will go over this with the Whips but other Ministers have their absolute priorities before the summer recess and displacing them may not be an easy task.
There are three full weeks of plenary sessions remaining. If the Garda Síochána Bill takes up an entire week, that will use up one third of those sessions and there are 15 Departments with various priorities.
They have their demands.
If there is any way in which the Select Committee on Justice, Equality, Defence and Women's Rights can facilitate a mid-week examination of the report, I am sure it would oblige.
As no justice legislation is scheduled for the week of 14 to 16 June, the Minister is down to two weeks in which to get everything through.
I am under pressure. It is not easy to click my fingers and produce debate time.
It is not absolutely essential that we rise on 1 July.
That is a point of view.
Question put and agreed to.
SECTION 75.
I move amendment No. 81:
In page 50, subsection (1), lines 34 to 41, to delete all words from and including "Commission---" in line 34 down to and including "consent" in line 41 and substitute the following:
"Commission by or on behalf of any member of the public".
Section 75 covers how complaints are made by members of the public. The manner in which it is presented, namely, "a complaint concerning any conduct of a member of the Garda Síochána that is alleged to constitute misbehaviour may be made to the Ombudsman Commission", seems somewhat tedious. It seems that all one need say is that complaints may be made by a member of the public or on behalf of any member of the public, rather than going through this rather convoluted version which refers to "a member of the public who is directly affected by, or who witnesses, the conduct". What is the reason for that caveat? Surely any member of the public with grounds for a complaint — as long as it is not frivolous, a matter which is dealt with later in the Bill — should be entitled to make the complaint, including on behalf of anyone else who may not be able because of mental or physical difficulties. That is the reason for my formulation.
If we allowed such a rubric — that any member of the public could make a complaint in respect of any conduct — one could have NGOs doing nothing but making complaints all day, every day.
There are penalties for frivolous and vexatious complaints.
I am not suggesting that they would be frivolous. One would have people saying that they had heard that A, B and C had happened, making complaints on hearsay evidence. Unless one is affected by the conduct or has first-hand knowledge of it, one should not normally be able to make a complaint. Otherwise one will have people saying that they had heard the day before yesterday that a garda had misbehaved on O'Connell Street. Someone might have told them about it in the pub the night before and they would be making a complaint about it. If such complaints are to be gone through and if the commission is to take them seriously, they must have someone who has, to use the old lawyer's phrase, locus standi to make the complaint. One cannot have simply anyone saying that he or she thinks it would be a good idea to have an inquiry into something heard about over a drink the night before.
The same is true in Northern Ireland. One cannot simply make a complaint on the basis of hearsay or reputation.
Immigration officers are members of the Garda Síochána. I recently came across a case where a local politician from Croatia entered this country to visit her daughter, who was having a child. The conduct of the garda in question was at least questionable. It is difficult for people in that position to go through the formalities of making a complaint. It was impossible for me, as a public representative, to do so because of the regulations in force at the time. It does not work in all circumstances.
The Deputy will appreciate that, under section 75(1)(b), if that politician from Croatia communicated to him that she really wanted to make a complaint, he could make it on her behalf as long as she sent him a fax saying that he had her authority to make the complaint.
Surely it could be done orally. Does it even require a fax?
Is that a change from the existing system? I was not allowed to make a complaint.
There is a change. The current Garda Síochána complaints code is more restrictive and tortuous.
The Minister is erring on the side of unnecessary safeguards. The entire purpose is to facilitate members of the public in coming forward to make complaints. There are already restrictions in the legislation regarding complaints that are frivolous or vexatious. I do not accept the Minister's argument about all those non-governmental organisations having nothing better to do than make complaints about poor gardaí. That is not likely to happen. One needs a simple and straightforward procedure. If a member of the public comes to me and is afraid, for whatever reason, and does not want to do make a complaint alone, he or she can ask someone to do it. Must the complaint be in writing or could it be done on an oral basis? Can the person in question simply say so-and-so told him or her to do it? If one does it for a member of the public, the likelihood is that the authorities will have to talk to the person anyway.
The way in which it is couched in the section surrounds it with obscurity. There should just be a simple statement to the effect that a complaint may be made by a member of the public or on his or her behalf. This legalese has no real function in terms of protecting anyone. What we need is a simple, straightforward channel for making complaints.
This is not a fanciful provision. One could imagine a politician, for whatever reason, deciding to make a complaint. If the complainant is not the person who witnessed the behaviour or who was directly affected by it, all that is required is that the individual making the complaint on his or her behalf must have his or her consent. This is not a very exacting provision. If a person is killed by a garda, it is a different matter because an inquiry automatically takes place in such instances. In the case of Garda behaviour which does not result in the death or serious injury of a person, however, it is reasonable to stipulate that the complaint must be made by a person who has witnessed the incident at first hand, who was affected by it — "affected" is a broad term — or who has authorised a person on his or her behalf, orally or in writing, to make that complaint. That is not an overly exacting test.
I understand the two points of view in this matter and I wish to make a recommendation. Perhaps it is the phrase "directly affected" which provides the more restrictive interpretation of this subsection. The exclusion of the word "directly" might broaden the provision without taking from the essential requirement that a person must be affected by or have witnessed the conduct in question.
I will review the provision but I do not want to abandon the notion that there must be locus standi. It is not clear what is meant by an indirect effect. It might refer to a shopkeeper who has lost a customer.
I am trying to be helpful.
Some people are upset by the smallest matter.
The Ombudsman Commission will be obliged to take very seriously any complaint that is not frivolous or vexatious and will have to process all such complaints. The commission members will not wish to receive letters of complaint based on hearsay from persons who neither saw a particular incident nor were aware of who was involved.
Amendment put and declared lost.
I move amendment No. 82:
In page 50, subsection (1), between lines 34 and 35, to insert the following:
"(a) by a member of the Garda Síochána who is directly affected by, or who witnesses, the conduct, or”.
A member of the Garda Síochána is directly excluded from making a complaint to the Ombudsman Commission under the provisions of this section. There is no reason that this should be the case. Situations may well arise where gardaí have crucial information about bad practices and abuses they have witnessed. We need look no further than the report issued today to recognise that this is the case. It might be argued that a garda who has such evidence can go to his or her superior officer. However, the difficulty is that, in some instances, the superior officer may be a party to the misbehaviour in question. The perception among those gardaí to whom I have spoken about this provision is that they are excluded from the process. There is no justification for this.
I made clear my concerns about this matter on Second Stage. The Garda Representative Association, GRA, is concerned that it is given no recognition in this regard. The Minister will argue that there is an existing legislative provision which allows gardaí to make complaints about a colleague. However, the GRA contends that the current system is ineffective and it is disappointed that the legislation excludes gardaí from making complaints to the Ombudsman Commission.
Deputy Jim O'Keeffe proposes an amendment to section 75(1) to rectify this. However, it might be more appropriate to amend section 79(2)(a) to indicate that complaints are admissible where “the complaint is made by or on behalf of a member of the public authorised under section 75 to make the complaint or a member of the Garda Síochána against another member”. Why have gardaí been excluded from the process and is the Minister prepared to reconsider that exclusion? I am concerned that gardaí do not have much confidence in the system currently in place for making complaints about colleagues.
I support the amendment. The purpose of the legislation is to ensure that anybody with a complaint to make should be entitled to do so. Are gardaí included as members of the public? Perhaps the provision should be amended in order to stipulate that members of the public include members of the Garda Síochána. There will be instances where gardaí are the persons who have witnessed or been affected by an incident which requires to be brought to the attention of the Ombudsman Commission or they may be obliged to make a complaint on behalf of a person who, for whatever reason, is not in a position to do so. It seems unnecessary and disappointing from the point of the view of the Garda representative bodies that gardaí should be precluded from bringing complaints to the Ombudsman Commission.
Under section 94(4), it is possible for the Ombudsman Commission to institute its own investigation in the case of a situation of which it has become aware. This addresses the issues identified by the Deputies. A member of the Garda Síochána who is the only witness to a serious matter and who believes, for whatever reason, that internal disciplinary procedures or reporting to a superior will be insufficient to deal with it, or having reported to a superior has received an inadequate response, can bring this to the attention of the Ombudsman Commission. In those circumstances, the commission could investigate the matter if it deemed it appropriate to do so.
My intention is to deal with arguments in Garda stations where a person claims that another has been derelict in his or her duty and the latter disputes this. The Ombudsman Commission will function as an independent adjudicating committee in such matters. I indicated in the Seanad that a mechanism exists whereby the Ombudsman Commission can choose, of its own volition, to institute an inquiry into a particular matter. This is sufficient to deal with the issue.
If we allow all cases where somebody objects to a direct order on the grounds that it is bullying and the other party counters with a complaint of insubordination and breach of discipline to come before the Ombudsman Commission, there would be no end to its work. There are two categories of complaints in that they either relate to a criminal offence or a breach of discipline. I am concerned that if gardaí start reporting each other to the Ombudsman Commission for breach of discipline, the commission will become mired in massive numbers of complaints.
I would prefer a situation where a member of the Garda Síochána could decide not to report a superior who had behaved appallingly or, alternatively, where he or she had reported the superior but received an inadequate response and could decide to inform the commission about the matter. The commission could then act and, if it would not act, there would also be the possibility of bringing the matter to the attention of the Minister.
Most people would think the commission the more immediate body for a garda to approach in those circumstances. If a garda is concerned to the point that he or she believes the matter should go to the Ombudsman Commission, there is a mechanism for that. In Northern Ireland, the only qualification is that a complaint must be made by a member of the public.
While I understand from where the Minister is coming, I approach this from a different perspective. I do not believe section 94(4) is anything other than a possible back door. It is not an acceptable route if a member of the force is seriously concerned.
I will explain my position. I recall the situation of an assistant commissioner who came to me some time ago with justified concerns about matters within the force, including some relating to his superior. This kind of situation has historical precedent. Given that historical precedent and more current issues such as events in Donegal, I do not want a member of the force to be precluded from going to the Ombudsman Commission if that member feels it is necessary to do so.
I appreciate the difficulty with regard to ensuring that frivolous rows in Garda stations are kept away from the Ombudsman Commission. At present, rows within Garda stations generally do not result in complaints which give rise to disciplinary proceedings. I understand that they are usually contained and dealt with, although I am not entirely certain about this. However, if, via the media, there was some middle way that would allow members of the force who genuinely had a concern——
The Morris tribunal report suggests discipline should have been enforced and that rows were going on which had got completely out of control, with gardaí being insubordinate and junior officers taping the conversations of their senior officers, and so on.
Obviously, a culture developed in that regard.
With regard to the phrase "a member of the public", is the intention to exclude members of the Garda and the Army from making complaints in regard to misbehaviour? What is the definition of a member of the public? What categories are included or excluded? If some large categories are excluded, surely there should be an avenue for complaints to be made. I do not know whether this would involve whistleblowing, perhaps, as was previously the case, through contact with a Member of the Oireachtas or whether it would be limited to members of the Ombudsman Commission. However, it should not be through another garda.
It does not seem right or fair that anybody with a genuine grievance in regard to particularly bad behaviour would not have an avenue of complaint available to them under the Bill — which deals specifically with this area — to allow them to report such behaviour and have an identifiable person address their concerns. Perhaps this matter should be reconsidered.
Section 94(4) is the appropriate means whereby somebody can draw the attention of the Ombudsman Commission to a matter which otherwise would not be investigated by it in the circumstances I describe. However, I cannot have a situation where every breach of discipline can be reported by any garda against any other garda.
To give a simple example, if a member of the Garda Síochána let fly with some soldier's language at a member of the public, that would be an admissible complaint. If it happened in the parade room of a Garda station, it would be a breach of discipline by the officer but that would be a totally different situation. There must be internal ways of dealing with such issues. I agree that if one reaches the point where a garda is being harassed and victimised, he or she could invoke section 94(4) and bring the matter to the attention of the commission. The garda could tell the commission, for example, that he or she was being ostracised or bullied by colleagues in his or her station due to standing up for the rule of law.
I can imagine concerted gross behaviour of that kind giving rise to circumstances which a member of the Garda Síochána might like to draw to the commission's attention. However, I cannot operate on the basis that bad language, which would be the legitimate subject of complaint if used on a member of the public, would give rise to an Ombudsman Commission investigation. We would never hear the end of it if the commission were to be involved every time a four letter word was used. I hope gardaí do not take offence at that remark.
What is meant by the phrase "if it appears to it desirable in the public interest"?
It means that the commission does not have to do it. It gives the commission discretion and asks whether the public interest requires it to act spontaneously in any matter.
Under section 94(4), the commission is mysteriously to somehow become aware that a matter is in the public interest. How will it become so aware? A further issue arises under section 75, namely, what constitutes a member of the public?
A member of the public is defined in the Bill as a person other than a member of the Garda Síochána or the Garda Commissioner.
What of an off-duty garda who might be on holidays in west Cork? Would he be a member of the public?
He would still be a member of the Garda Síochána.
I will not press the issue.
If he witnessed a criminal and arrestable offence, he would be entitled to arrest a colleague and make a complaint about him or her. If the offence is simply misbehaviour, his remedy must be elsewhere and must be internal, unless the offence was extraordinary in nature. In that event, he would bring the matter to the attention of the Ombudsman Commission. For example, I imagine, having regard to the power of the commission under section 94(4), a politician could write to the commission requesting it to use its power to investigate a case, regardless of whether the politician had witnessed the incident, if he or she believed, for stated reasons, that it merited an investigation.
If a garda was bullying another garda in a Garda station, it is not likely it would be in the public interest to highlight that.
Whatever about the public interest in stopping bullying, the commission, if it became aware of the matter, would not hold an inquiry but would pass the complaint on to the Commissioner for him to resolve.
I welcome the Minister's comments. The nature of the workplace of gardaí is that it is closed and confidential. Few workplaces are as closed in regard to confidentiality. The unique nature of their work does not, therefore, lend itself to complaints about colleagues being made in an easy or natural way. That was the cause of my concern and members of the force should be able to do so in the way to which I refer. In light of promotional opportunities, it might be easier for a garda to stay quiet and put up with bullying tactics by another, not necessarily senior, member of the force.
I understand why gardaí would be concerned about this matter. Given the Minister's statements, however, there is a provision which enables them to persist if they feel they have not received an adequate response. I welcome this and I believe it should be included. I can see how younger members of the Garda could be easily intimidated into silence rather than being encouraged to seek their just rights in particular circumstances. I was unaware of the provision in section 94 and I welcome it. I am now satisfied.
I recall one occasion from my professional career as a barrister when a member of the Garda was victimised by his colleagues to the point where he was driven out of the force and suffered serious illness. He did not imagine it; there was a terrible concerted campaign against him. If this sort of situation came to the attention of the ombudsman commission, it would certainly be investigated. The individual in question was wholly innocent and would not play along with others who were not innocent. For his trouble, they reduced him to psychiatric illness. Ultimately, he received massive compensation from the courts for it.
It that a matter which is in the public interest?
I imagine that if the ombudsman commission had been in place at the time and if the full facts had come to its attention, it would have moved immediately to investigate the case because the officer in question alleged that his colleagues were corrupt and that he would not play along with their corruption. Effectively, they drove him out of the force and reduced him to quite serious psychiatric illness. I hope he has recovered. I remember the case well.
It was allowed fester and go through other Garda stations.
Amendment, by leave, withdrawn.
Amendments Nos. 84 to 87, inclusive, are related to amendment No. 83, and by agreement may be discussed together.
I move amendment No. 83:
In page 50, subsection (2), after line 43, to insert the following:
"(a) to the Garda Commissioner,”.
The purpose of amendments Nos. 83 and 84 is to include the Garda Commissioner as a person to whom a complaint may be made about alleged misconduct, constituting misbehaviour, by a member of the Garda Síochána. This was always the intention and the second amendment is consequential.
Amendment No. 85 is a technical drafting amendment advised by the Parliamentary Counsel. Amendment No. 86 is necessary to cover the situation where a complaint may be made to a member of the Garda Síochána, at or above the rank of chief superintendent, at a place other than a Garda station. Its purpose is to ensure that in such cases, the commission is notified of the complaint and receives a copy of it. If the complaint is not in writing, a copy of the record of the complaint must be sent to the Commissioner. Amendment No. 87 is consequential to amendment No. 83.
Is the Garda Commissioner not a member of the Garda Síochána?
If the Chairman returns to section 74, he will see that the Commissioner is excluded from it.
The section in question states that a "member of the Garda Síochána" does not include the Garda Commissioner. That is fine.
Amendment agreed to.
Question proposed: "That section 75, as amended, stand part of the Bill."
In section 75(2)(a) and (b), should the reverse not be the situation? Paragraph 75(2)(a) states that one can make a complaint directly to the Ombudsman Commission or by stating, giving or sending it to any member of the Garda Síochána at a Garda Síochána station. Although one is much more likely to find a chief superintendent in a Garda station rather than out on the beat, paragraph 75(2)(b) states “to a member at or above the rank of chief superintendent at a place other than a Garda Síochána station”. Where would any member of the public come across someone above the rank of chief superintendent, other than in a Garda station? It seems that to facilitate the public, it should be to any member of the Garda Síochána at or outside a Garda station. Why must we place restrictions on where a complaint is made? Why can one not hand the letter to a member of the Garda Síochána, if one meets him or her on the beat in one’s community, telling him or her that it contains the details of whatever one witnessed? One can complain to any member of the Garda Síochána within a station but one cannot do so outside a station.
Section 75(2) has three purposes. First, one can always make the complaint directly to the Ombudsman Commission. Second, one can make it to a member of the Garda Síochána at a Garda station. Third, there may be people who, for whatever reason, do not wish to go to a Garda station or to communicate directly with the Ombudsman Commission. I do not know who those people might be.
People are unlikely to use this rarefied officer above the rank of chief superintendent.
The facility is there for a reason, which is that some people would want to have a private discussion and hand the complaint over in circumstances of total confidentiality. They would avail of that opportunity under this subsection. I do not believe this will happen often. However, it cannot do any harm to have the provision in place. Hence, the options are that one can make a complaint in a Garda station, one can send it to the commission or one can arrange to do it through a senior Garda officer at some place other than a Garda station.
That is some twisted logic on the part of the Parliamentary Counsel or whoever is responsible for this. Would it not make sense to enable a person to give the complaint to any member of the Garda?
That would be a good amendment on Report Stage.
My point about this section is that it is not simple and straightforward. There are all sorts of little twists. A twisted logician has been turning his mind to get this in such a fashion that it will be as difficult as possible——
May I explain the logic of it again? It is a requirement to give the complaint to a member of the Garda Síochána at a Garda station because if one does so, it can be recorded. The fact of its arrival can be recorded and the person can be guaranteed that it will not simply go into a pocket, in the way a Minister receives representations at divisions in the House——
The Minister never does anything about them.
——which come out of the pocket three weeks later, only for the Minister to realise that he or she did nothing about them.
When the jacket was taken to the cleaners.
That is why it must be done at a Garda station. One can also make a complaint directly to the commission. The third option is that one could write to the Commissioner at Garda headquarters or to the assistant commissioner in one's area. One is not obliged to go to a Garda station to do it. He or she can pass it on. If one wrote to Commissioner Conroy, care of Garda headquarters, Phoenix Park, Dublin, he would not be obliged to reject it on the basis that it was not done at a Garda station.
Crumlin is a vast area which has only one superintendent. The people regard the superintendent as being the head of policing in the area. I do not know where the chief superintendent is located. It might be Rathmines.
I will examine the possibility of removing the word "chief" on Report Stage. However, I do not want people receiving complaints at home and leaving them on the mantelpiece with disaster striking as a result. There are time limits to all of this.
That was well done by the Chairman.
Question put and agreed to.
SECTION 76.
I move amendment No. 84:
In page 51, subsection (3)(b), line 18, before “a” to insert “the Garda Commissioner or”.
I refer to the time limits for making complaints. Given the committee's earlier discussions, perhaps it would be correct to insert a retrospective feature to re-examine complaints which may have been dealt with by internal Garda mechanisms or by the Garda Síochána Complaints Board. The commission should be open to retrospective complaints, if, having due regard to the original findings, it is of the opinion that there is public interest in it. Sometimes, facts which might lend weight to the possibility of someone making a complaint and asking the Ombudsman Commission to re-examine a situation, emerge afterwards. We should, therefore, have some type of mechanism by which some individual complaints could be re-examined.
It was stated yesterday that the Garda Complaints Board was not as effective as it should have been. If there are complaints that people have made over the years which were not dealt with as effectively as should have been the case, perhaps the Ombudsman Commission could re-examine them. If there are individual internal Garda complaints procedures with which people were not satisfied or if events similar to those to which the Minister referred have occurred and have not been properly dealt with — or if the individuals involved felt they were not properly dealt with — complaints could be made to and considered by the Ombudsman Commission. The latter could rule such complaints out of order if it found that they were not in the public interest or were vexatious or frivolous in nature.
Is Deputy Ó Snodaigh signalling a——
I will probably table an amendment on Report Stage. However, the Minister may wish to offer an opinion on the matter.
Does the Minister wish to respond?
The Ombudsman Commission is given this discretionary right to extend the time if it considers there are good reasons for doing so. In general terms, however, and under the Garda Síochána Complaints Act, people are required to do it within six months. This is a liberalisation and I would assume that an independent commission would act reasonably and would extend the time where it considered it appropriate to do so.
Amendment agreed to.
Section 76, as amended, agreed to.
SECTION 77.
I move amendment No. 85:
In page 51, subsection (1), line 21, to delete "any other" and substitute "a".
Amendment agreed to.
I move amendment No. 86:
In page 51, between lines 36 and 37, to insert the following subsection:
"(3) If the complaint is made to a member at or above the rank of chief superintendent at a place other than a Garda Síochána station, that member shall ensure that the Garda Commissioner—
(a) is notified of the complaint, and
(b) is sent a copy of the complaint or, if the complaint was not made in writing, a copy of the record of the complaint.”.
It is strange that the Garda Commissioner does not seem to be a member of the Garda.
The position is defined in section 74.
It does seem strange. Future generations will wonder about the thinking behind this.
Amendment agreed to.
Section 77, as amended, agreed to.
Section 78 agreed to.
SECTION 79.
I move amendment No. 87:
In page 52, subsection (1), line 8, after "from" to insert "the Garda Commissioner or".
Amendment agreed to.
Question proposed: "That section 79, as amended, stand part of the Bill."
Section 79 is about the determination of whether a complaint is admissible and subsection 4 states:
A complaint concerning a person who, at the time of the conduct that is the subject matter of the complaint, was a member of the Garda Síochána is not inadmissible by reason only that the person—
(a) is, at the time the complaint is made, no longer a member, or
(b) retires or resigns from the Garda Síochána at any time after the making of the complaint.
Why can a complaint not be investigated even if somebody is no longer a member——
The phrase used in the section is "not inadmissible".
It is a double negative.
Therefore, it will not be inadmissible.
That is very important because there have been occasions in the past when people said that they were resigning and not coming back to the force.
Why would it not just say that it is admissible rather than use the double negative?
The Parliamentary Counsel does these kinds of things.
Obviously, the Parliamentary Counsel's standard of English does not compare with that of the Deputy.
Two minor matters arise in the context of section 79(2)(b). The term used in this instance is “constitute misbehaviour”. Should the word “misconduct” not be used instead? It is used on one or two previous occasions and I do not know why——
Misbehaviour is defined in this part as either a criminal offence or a breach of discipline.
The second issue, which relates to what we were just talking about, concerns section 79(2)(c) which states that a complaint is admissible if it “is made within the time allowed under section 76”. Is it correct that the time allowed is specific and relates to a period of six months?
It is specific to six months.
It is also there; it is admissible.
Does section 76(2) supersede section 79(2)(c)?
Yes, it is the whole section and not just section 76(1).
Question put and agreed to.
SECTION 80.
I move amendment No. 88:
In page 52, subsection (1)(a), line 39, after “complainant” to insert the following:
", the member of the Garda Síochána whose conduct is the subject of the complaint".
This amendment was requested by the Garda Representative Association. The association drew to my attention that we forgot to provide that a garda is entitled to be made aware if an inadmissible complaint has been made against him or her. That is a fair point. It would be strange if a complaint was made, effectively in secret and on notice to the Commissioner, and if the garda against whom it was made never discovered what happened to it or was not aware that it had been made in the first instance.
It is important that this amendment be made.
Amendment agreed to.
Section 80, as amended, agreed to.
SECTION 81.
Question proposed: "That section 81 stand part of the Bill."
The Garda Commissioner is entitled to preserve the evidence, etc., and may postpone notifying the member of the Garda Síochána whose conduct is the subject of the complaint until those measures are taken. Obviously, there is seen to be a presumption in section 81 that the member of the Garda Síochána would be notified in section 80. The amendment is, therefore, relevant. Could this be delayed for a period that might interfere with the rights of the garda against whom the complaint has been made? Would we want to include the word "immediately" or the phrase "may postpone notifying the member of the Garda Síochána until those measures are taken but must immediately then inform the garda"?
The section refers to "obtaining and preserving evidence". One might think that, in this instance, such evidence would be physical in nature and consist of, for example, a bloody knife. However, evidence could also amount to statements. The section effectively states that the Commissioner is under a duty to ensure that members of the force take whatever steps are appropriate to obtain and preserve evidence. Section 81(1)(b) is merely permissive and has the effect that, if appropriate, a member of the force who is the subject of a complaint should be notified of it at a later date. This provision is not mandatory. There could be cases where it would be totally destructive of the complaint to notify the person who was the subject of it when he or she would be in a position to either destroy or conceal evidence or to intimidate some party.
Is there anything behind this in so far as the complaint may be not be frivolous but it does not stand up?
A garda would not find out about it. A person will not worry about something he or she does not know about.
Is there any point in people knowing something that they do not need to know about if it is not going to stand up?
There are certain cases where a person should be told as quickly as possible because he or she might be obliged to preserve evidence in his or her favour.
The basic point is that evidence be obtained and preserved.
Question put and agreed to.
SECTION 82.
I move amendment No. 89:
In page 53, subsection (2)(a), lines 31 and 32, to delete “about whether a complaint can be resolved” and substitute the following:
"by the Ombudsman Commission about whether a complaint is suitable for resolution".
Amendment agreed to.
I move amendment No. 90:
In page 53, subsection (2)(a), line 33, after "warrants" to insert ", or could more appropriately be dealt with by,".
Amendment agreed to.
I move amendment No. 91:
In page 54, between lines 11 and 12, to insert the following subsection:
"(6) If a complaint is resolved pursuant to the guidelines—
(a) the Ombudsman Commission shall notify the Garda Commissioner of the resolution of the complaint,
(b) any record of the complaint held by the Garda Síochána shall be expunged, and
(c) the member whose conduct was the subject matter of the complaint shall not be discriminated against by way of dismissal, reduction in rank, denial of an opportunity for promotion or otherwise by reason only of the complaint.”.
As a further incentive to members of the force to use the informal resolution procedure, an impressive point was made to me in the course of the very constructive discussions with the Garda Representative Association. Amendment No. 91 is designed to ensure that if a complaint is resolved informally and the Commissioner as the manager of the force is notified of that fact, any record of the complaint held in Garda records must be expunged. This will ensure, in so far as the member is concerned, that his or her agreement to use the informal resolution procedure will not be held against him or her or used in any way that would prejudice the person in future.
If we want to give people an incentive to go through the informal resolution mediation, we want it to be the case that it does not count against them in their careers in the Garda Síochána. For example, and as often happens, if someone claims that a garda was rude and abusive to them and the garda's view is contrary to this, rather than have an argument, the officer, if he or she actually was abusive, will go to the complainant and apologise. This will not be on the record. Knowing the attitudes within the force, people will believe that going down the informal resolution route will leave a black mark on their records until the crack of doom.
Will the mediation service be established under the Ombudsman Commission's authority or under that of some other agency?
The informal resolution process will be under the authority of the Ombudsman Commission's superintendents. They can draw up guidelines providing for the process. There might be cases where a sergeant would be the mediator and tell the man or woman in that unit to go and tell the complainant that he or she is sorry, which would suffice for the purpose of the exercise. I do not wish to be too prescriptive.
I welcome the idea of mediation. Subsection 5 states that no "answer or statement made, in the course of attempting to resolve a complaint that is pursuant to the guidelines" may be communicated to the Garda Commissioner or any other person.
Lawyers have discussions without prejudice to try to settle cases. One never goes into a court room and says that one has spent the last hour haggling about the case and that the other side is being unreasonable. If that happened, sides would never speak to each another. The purpose of this amendment is to encourage people to talk, without a record or adverse findings being kept. We are incentivising informal resolutions. One of the points concerning the first Morris report is the fact that it was stated that people were driven to denial because any admission or acknowledgement of even part fault was prejudicial under the culture in the force. I am trying to put in place a system under which people will be able to raise their hands, admit to losing their tempers and express their apologies without complaints being sent to Garda headquarters.
Subsection 6 states that the Ombudsman Commission shall notify the Garda Commissioner of the resolution of the complaint.
The Ombudsman Commission will already have notified the Commissioner of a complaint being made.
Yes but it will not tell the Garda Commissioner anything about what happened.
It is like mediation.
What if the Garda Commissioner asks to be informed about what happened?
It is precisely to avoid that situation that we are putting the provision in place. If the Commissioner can inquire about a matter, people will not use the informal resolution process because they would be putting their heads in nooses. The Ombudsman Commission saying that something is fine but the Commissioner disagreeing is exactly the type of culture——
What if the Commissioner informed the commission that a complaint had been brought to his attention and was told that the matter had been resolved but that he could not be provided with information about that resolution? The Garda Commissioner might accept that but is he not entitled to know what happened?
Does the Deputy want this to happen? If the Garda Commissioner is entitled to be informed about matters and to make notes on people's files, the process will not be used.
I can foresee circumstances arising where an onus will be place on people to become involved in the mediation process because of a belief that their careers might otherwise be affected. If a problem is resolved under the mediation process, the Commissioner will know nothing about it and any black mark will be expunged. However, the mediation process must be real in nature and undue pressure must not be exerted on members of the public to desist from pursuing complaints because a members' career might be affected. Who will be in charge of the mediation process? Will it simply involve a garda apologising to the person who made the complaint? There must be an independent structure rather than allowing the process to be operated within Garda stations or to be conducted by members of the force. The Bill is silent as to what this mediation process might be and how it will fall within the remit of the Ombudsman Commission.
It is flexible. I do not want to start working out now here or in the Oireachtas a rigid mechanism for informal resolution. The resolution must be informal and must be done in accordance with guidelines. It will be the responsibility of the ombudsman commission to take a view about certain categories of complaint. For example, a garda beating someone up with a baton will never be a matter for informal resolution. What has been presented is very similar to the position in Northern Ireland.
The Minister says that he is focusing on mediation but the Bill refers to "or other informal means". There must be other possible methods — I do not know what they are — apart from mediation.
Typically in mediation, someone is appointed to act as a go-between and to persuade both sides. In this instance, however, there could just be a letter. For example, a sergeant might tell a garda to write to a motorist and apologise for the bad language used. There would be no mediation in such circumstances.
Amendment agreed to.
Section 82, as amended, agreed to.
SECTION 83.
Question proposed: "That section 83 stand part of the Bill."
If a complaint concerns the death of or serious harm to a person, under this section the Ombudsman Commission shall immediately direct a designated officer to examine the complaint and to report a recommendation as soon as practical. This is an accelerated process to ensure the complaint is not long-fingered.
It is similar to what we said earlier about the Morris tribunal.
Question put and agreed to.
Sections 84 to 87, inclusive, agreed to.
Amendment No. 92 not moved.
Sections 88 and 89 agreed to.
SECTION 90.
I move amendment No. 93:
In page 59, subsection (1)(b), line 31, after “investigation” to insert the following:
"and any interview conducted with a member arrested under this Act shall be subject to procedures which shall be prescribed by the Minister for the video and audio recording of interviews with arrested persons generally".
This amendment is an attempt to bring in what should be the norm, namely, that there would be video and audio recordings of all interviews with arrested persons. The procedure in this instance should be no different than in any other where an ordinary member of the public is arrested and subjected to investigation and interrogation procedures. I hope the Minister will have this in operation in all Garda stations where questioning takes place. Once the audio and video recording is in place, it should be mandatory for investigations of members of the Garda Síochána
The most recent statistics show that 96% of interviews are electronically recorded. We are almost there, as matters stand. A recent judicial decision commented that there would have to be a good explanation if interviews were not recorded. Between legislation, regulations and judge-made law, we have arrived at this position. I do not want to do something that is completely rigid. Section 90(1) imposes all the duties on any member of the Garda Síochána under any enactment of the common law. That includes the detention of a member, so what is sauce for the goose is sauce for the gander. We are approaching the point where 100% of interviews will be recorded. I take the Deputy's point but I would prefer not to accept the amendment. There are conceivable reasons that people do not want to do this.
Is it an option?
Yes. Should it not be mandatory? Should the option be there?
There are some cases where people do not want a video record of an interview.
Cases in which people reply "No, no, no".
The Garda Síochána can record anything it likes but there are some cases where the detained person does not want an audio-visual record of him or her saying something.
Does he or she have the right to request that the cameras be turned off?
That is the position. It is up to the Garda Síochána to decide if it wants to agree to this request as it may get a wholly inadmissible confession, depending on the judge's attitude afterwards. There are some people who do not want an audio-visual record of things they might say about other people.
That would be in a case where gardaí are seeking evidence they can use in a prosecution.
It happens on very rare occasions and the existence of the loophole could mean that people would be pressurised to demand that there be no record kept. That is why there is scepticism about such cases. One may think someone was persuaded in a corridor to enter an interview room and say on video that he or she did not want any further video recording of the interview. I think it is best to leave this section as it stands and hope we get to the point where 100% of interviews are recorded.
Is the Minister referring to a case where a suspect does not want to divulge information on video? He or she is free to divulge this information when not being questioned. One is not questioned for the entire period one is detained in the station. When someone is being questioned on the offence, should the video equipment automatically record the interview? Judges and lawyers raise questions if the record is not available.
Developing judicial attitudes are so strong that we are talking about a very unusual situation. I do not want to have a higher standard in the case of gardaí than for members of the public, nor do I want a rigid and inflexible rule that does not apply to other members of the community.
The argument used by previous Ministers for not having audio-visual equipment was that quite a number of suspects were wont to decline to have their interview recorded and that this right should be respected. This argument was used for years in the 1980s.
I am not offering that.
That is not the case now.
No, it is not. The current figure for interviews recorded is 96%. It is possible that someone may not want to have a video record and such requests are dealt with sceptically. There may be a situation where the equipment broke down or where someone wanted to give a cautioned statement in a Garda station without a video record. One situation that occurs is that if a number of people have been questioned on video, those who are guilty insist on their accomplices requesting and providing the tape to prove that the accomplice did not grass on his colleagues
That is another reason for having recording equipment.
Amendment, by leave, withdrawn
I move amendment No. 94:
In page 60, subsection (5), lines 25 to 32, to delete all words from and including ", but" in line 25 down to and including "1983" in line 32.
I do not see the relevance of the Interception of Postal Packets and Telecommunications Messages (Regulation) Act 1993 to this Bill. There seems to be no logical reason that powers under the Offences against the State Acts 1939 to 1998 and the Interception of Postal Packets and Telecommunications Messages (Regulation) Act 1993 should not be available to the Ombudsman Commission when investigating a possible offence. Is there any reason it might not be necessary to avail of some of those powers from time to time, depending on the nature of the offence that is being investigated? I can to some degree see the reason for the exclusion of offences against the State. However, I cannot see the reason for the exclusion of the interception of postal packets and telecommunications messages as that might be required, depending on the offence. Why is it excluded?
This could relate to the tapping of the telephone of a member of the Garda Síochána. That is one way of looking at it. However, if the Ombudsman Commission were to request permission from the Minister for Justice, Equality and Law Reform to tap other people's telephones, it would be acting as a separate police force, effectively.
It is not necessarily just about the tapping of a telephone. We had a situation pertaining to the Morris tribunal, where——
The Ombudsman Commission can get call related information, that is, information that an individual telephoned somebody. However, at the moment, a warrant from the Minister for Justice, Equality and Law Reform, is required to tap a telephone. The Police Ombudsman in Northern Ireland has no right to apply to the relevant Minister in that jurisdiction for a warrant to tap a telephone.
I would be uncomfortable with the Ombudsman Commission asking for permission to tap journalists' telephones. Let us see how this Bill settles down. The commission will be able to get call related information, but not——
Is that call related information related to the suspect or the person being charged?
If the Ombudsman Commission is investigating a serious offence, at the moment the Garda Síochána——
The commission would be able to get telephone records of such people. Is that correct?
Yes.
That was a major part of the Morris tribunal's research.
I would not be comfortable giving the Ombudsman Commission the right to tap the telephones of politicians or journalists in pursuit of its investigations. Perhaps we may have to review this in two years and determine whether this is a good idea. However, I do not want to begin on the premise that the commission is given intelligence gathering powers that are currently very restricted.
Amendment, by leave, withdrawn.
Section 90 agreed to.
Sections 91 and 92 agreed to.
SECTION 93.
I move amendment No. 95:
In page 63, subsection (2), line 30, after "concerned," to insert the following:
"it may institute criminal proceedings against the member and if it decides not to do so".
This is related to the amendment that I proposed earlier regarding the role of the Director of Public Prosecutions. I proposed that rather than the Director of Public Prosecutions being the only person who may institute criminal proceedings against a member, the Ombudsman Commission would also be able to do so. We had the argument on this question yesterday.
Yes, we had the argument yesterday and I said that I do not want to introduce a different standard of protection.
I will not pursue the matter. We do not have to go through the arguments again.
Amendment, by leave, withdrawn.
Section 93 agreed to.
SECTION 94.
Question proposed: "That section 94 stand part of the Bill."
I want to emphasise that subsections (4) and (5) of this section give independent means whereby complaints can be referred to the Ombudsman Commission for investigation.
Question put and agreed to.
Sections 95 to 97, inclusive, agreed to.
SECTION 98.
Question proposed: "That section 98 stand part of the Bill."
I have raised the issue before regarding the request by the Minister to the Ombudsman Commission to examine practice, policy or procedure and report to the Minister on such matters. At the same time, while the commission can do all that, it cannot be asked a question by a member of the Select Committee on Justice, Equality, Defence and Women's Rights or any other committees on practice, policy or procedure. The Minister will have a cosy relationship with the Ombudsman Commission where the examination of policy matters is concerned, but nobody else will be allowed to comment or ask questions.
In practical terms, the Ombudsman Commission will be careful to maintain its independence from the Minister for Justice, Equality and Law Reform and if there is a cosy relationship, it is much more likely to be between it and Opposition Members than the Minister. Any perception of cosiness between the commission and the Minister would give rise to strong criticism.
Let us examine section 98(4) and (5) which reads as follows:
(4) The Ombudsman Commission shall—
(a) examine the practice, policy or procedure and make the report in accordance with the Minister’s request, and
(b) provide the Garda Commissioner with a copy of the report.
(5) The Minister may publish all or part of any report received under this section from the Ombudsman Commission.
The issue here is that the Minister may not publish all or part of the report if he so chooses. There will be one regime for the Minister and the Garda Commissioner regarding practices, policies and procedures and another for everyone else. The Ombudsman Commission, the Minister and the Garda Commissioner will have, whether we like it, a cosy relationship because the reporting is only operational between those three entities and this committee, for example, is not entitled to question the commission on any report it produces unless the Minister publishes it.
As Minister, I could be questioned about the report. Parliamentary questions could be posed as to whether I have received reports and about their contents.
Surely this committee should have the reports as of right rather than trying to garner information by way of parliamentary questions. The Minister is aware that the level of thoroughness and detail in responses to parliamentary questions often leaves much to be desired. One would have to pose numerous parliamentary questions to get information on the entire report.
The Deputy gets annoyed when I give him information that he does not want.
That is part and parcel of the parliamentary question response process. There is a problem with this and the end result could be that a cosy relationship could be created because there will be much contact between the Minister and the Ombudsman Commission which will not be subject to scrutiny by anybody else, except the Garda Commissioner to some extent.
Perhaps a way out of this problem is for the wording to state that the Minister "will" rather than "may" publish all or part of any report received under this section. Surely any report on policies, practices and procedures should be put before the House and in the Oireachtas Library for Members to peruse. Such reports would not deal with detailed individual cases and there is not much sense in Members posing parliamentary questions to determine the contents of the report of the Ombudsman Commission to the Minister and the Garda Commissioner, whether there was correspondence between these entities and what was the outcome. Perhaps the Minister could be more proactive in this area and make more information available.
One alternative to the phraseology of subsection (5) is to make it mandatory to make it public. However, it might be the case that if any such report can only be requested in circumstances where it must be made public, it might inhibit the Minister from asking for the report and might inhibit the commission in the language it would use. I believe it is better left as it is. If it gives rise to a problem in future, we can amend it. I do not wish to have a situation where the only report a Minister can seek is one that must be made public.
I understand the Minister's concern. However, human nature will always err towards concealment rather than revealing all. Is it implicit in the provision that while the Minister may publish all or part of any report, should a committee request the report from the Minister, he or she will make it available to the committee or come before the committee and discuss it?
In the first instance, a parliamentary question could elicit whether the Minister had asked for any such report and whether he or she had obtained it. The Minister could then be asked the reasons for not publishing it. Unless they were reasonably good and convincing reasons, I cannot imagine a Minister being able to sustain at great length a refusal to publish the report. The Ombudsman Commission's annual report would record the fact that such a request had been made of it and whether it had complied with it. Unless there was a good reason to keep the report private, there would be strong pressure on the Minister to publish it.
It just makes it that bit more difficult.
Question put and agreed to.
Section 99 agreed to.
SECTION 100.
I move amendment No. 96:
In page 67, between lines 11 and 12, to insert the following subsection:
"(2) Protocols adopted pursuant to this section shall be laid before both Houses of the Oireachtas".
This is quite straightforward. Does the Minister wish to comment on it? The provision states:
... the Ombudsman Commission and the Garda Commissioner shall, by written protocols, make arrangements concerning the following matters:
(a) the use of detention facilities at Garda Síochána stations by designated officers of the Ombudsman Commission for the purpose of exercising their powers ...
Will these designated officers be policemen or will civil servants come into the Garda stations and use the facilities of the station at the request of the Ombudsman Commission?
They will not be members of the Garda Síochána. They will be officers of the commission. A member of the Garda Síochána who arrests somebody has access to the station. There is no problem about that, or there should not be. The problem here is that if the Ombudsman Commission has offices in St. Stephen's Green and its officers had to detain somebody for questioning for 12 or 24 hours, the commission should not have to provide its own detention facilities and the like. It only makes life difficult. It is sensible that if the officers arrest a member of the Garda Síochána or a lay person who they allege has committed an offence or has evidence relevant to an offence which they are investigating, they should not have to put them up in a hotel or somewhere.
However, it will mean officers of the Ombudsman Commission can come into Garda stations and use the audio-visual facilities and the cells. People might be held overnight.
What else can I do, unless I provide a barracks somewhere for the Ombudsman Commission?
Are there regulations about that at present? Can civilians, and officers are effectively civilians, use Garda stations?
The Garda Síochána complaints board must use gardaí for that purpose. We are providing for non-gardaí to exercise radical rights under this legislation. If the power to detain and question is being put in place, as well as the power to produce a video and so forth, unless the Deputy expects me to produce a special detention facility somewhere in Dublin with cells and so forth——
No, I am just teasing out how it will operate in such circumstances. As there is provision for members of the Garda to be employed by the Ombudsman Commission, there will probably be some gardaí present. However, this essentially means civil servants or officers of the Ombudsman Commission using the station.
They are not civil servants. They are officers. To give an example, the officer could be a tax inspector, a former Revenue Commissioners official, a company law inspector, a member of an English police force or a member of the PSNI. It could be anybody.
The amendment relates to these protocols. It will be interesting to see how some of these people will question gardaí in Garda stations and how that will operate vis-à-vis the existing cohort of gardaí there. In the interests of transparency, the amendment provides that these protocols be laid before both Houses of the Oireachtas as soon as possible.
Is there a good reason for not doing so?
I will have to think about it.
Does the Minister agree to accept the amendment?
I will think about it between now and Report Stage.
Amendment, by leave, withdrawn.
Section 100 agreed to.
SECTION 101.
Question proposed: "That section 101 stand part of the Bill."
As the Chief Justice indicated that he has a problem with the mandatory nature of the wording, I will re-examine the wording to make it less mandatory.
I will be somewhat disorderly by indicating that I am considering providing in section 89 that the report of the Ombudsman Commission to the Garda Commissioner on the investigation it has carried out in the case of a complaint which did not involve the commission of any offence, in other words, under the provisions of sections 86 or 87, should be admissible as evidence of facts unless the contrary is shown. This is in civil proceedings or disciplinary proceedings. It is one of the issues that arose today at the press conference on the Morris tribunal.
The Law Reform Commission has proposed that tribunal reports should be admissible as evidence of facts stated in them in civil cases, not criminal cases. I intend to consider whether I wish to do that in this case. There is a constitutional issue in that if one makes it admissible, one might make it much more justiciable as well.
Question put and agreed to.
Sections 102 and 103 agreed to.
SECTION 104.
I move amendment No. 97:
In page 68, subsection (1), line 20, after "statement" to insert "made without malice".
Amendment agreed to.
Section 104, as amended, agreed to.
SECTION 105.
Question proposed: "That section 105 stand part of the Bill."
What is the Minister's thinking in respect of this section? Section 105(1) states "The Minister shall, by order, appoint a day to be the establishment day for the purposes of this Part."
I will speak about this in general terms. Arising from the first Morris report, the Department was strongly of the view that there were issues that were not covered at all by the Ombudsman Commission, such as the effectiveness of the force and compliance with proper standards which did not require a complaint to be made but which were matters about which the Department should be informed. In his first report, Judge Morris emphasised that one could hardly stand up in Dáil Éireann with total credibility and say that one is politically accountable for the force if one does not know what is going on in the force.
Whereas there is a very good relationship between the Garda Commissioner and the Minister, there is a strong case to be made that the Minister of the day should be in a position to know whether the force is adhering to acceptable standards in terms of efficiency and the way in which it is carrying out its functions. It was with that in mind that the inspectorate was established. In Northern Ireland, for example, there is an inspectorate for constabulary which exists parallel to the Police Ombudsman, Ms Nuala O'Loan, and considers different issues.
When the Government was originally thinking of having an inspectorate rather than an ombudsman, the argument was made by the Human Rights Commission that an ombudsman would be compromised if one of the functions of the Ombudsman Commission was to deal with the use of resources. If one sucks the Ombudsman Commission into whether particular practices are the best use of resources, one could potentially find corner cutting going on as regards standards of service for the public. In addition, the Ombudsman Commission could be psychologically driven towards compromising those standards. It is for this reason that a Garda Síochána inspectorate has been introduced in the Bill. The purposes of the inspectorate are as set out in the legislation. It is an important innovation.
The functions of the inspectorate are set out in section 109(2), which states:
The functions of the Inspectorate are—
(a) in furtherance of its objective to carry out, at the request or with the consent of the Minister, inspections or inquiries in relation to any particular aspects of the operation and administration of the Garda Síochána.
(b) to submit to the Minister—
(i) a report on those inspections or inquiries, and
(ii) if required by the Minister, a report on the operation and administration of the Garda Síochána during a specified period and on any significant developments in that regard during that period.
and
(c) to provide advice to the Minister with regard to best policing practice.
Subject to subsection (5), the Minister is obliged to cause copies of a report to be laid before both Houses of the Oireachtas. The subsection allows him to delete from a report any matter which would be prejudicial to the interests of national security or which would facilitate the commission of an offence, prejudice a criminal investigation or jeopardise the safety of any person.
The band of grounds for excising something from a report deals obviously with national security. In addition, one does not want to tell the criminal confraternity information of any kind that would be of help to them. For example, if the inspectorate was dealing with Garda communications, one does not want full disclosure on that subject to be delivered to criminals in order that they can work out where the weak points are in the Garda radio network. It is a narrow band of exceptions, however, and, in general, the rule is that every inspection report must go before both Houses of the Oireachtas. That is a very transparent arrangement.
Subsection (7) states that the inspectorate is independent in the performance of its functions. Therefore, it cannot be directly told by me to go out and nobble chief superintendent X or bring me a report that would justify his removal. It is an independent body.
I have come to the view that this is a good idea. In many ways, it is an inevitable response to the first Morris report. It will be beneficial for the public and the Garda Síochána. Three members will be appointed to the inspectorate but about what kind of people are we talking? Are we thinking in the context of some senior police officer from abroad? Will it be a chief inspector or someone of another rank? Will the inspectorate be a full-time job for all three of its members? What level of remuneration will they receive? When does the Minister think the inspectorate will be up and running? Will he outline his thinking as to how he sees the inspectorate playing its role? That would be helpful.
I am not quite as sanguine as Deputy Jim O'Keeffe on the issue. On television the other night we saw the result of the lack of an inspectorate for nursing homes, although they have more than three people involved. Under the proposed structure, a limited number of inspections would take place. I welcome the structure and have no problems with it. It is good to have a Garda Síochána inspectorate. As we already have an Inspector of Prisons, why should we not have an inspectorate for the Garda Síochána? However, I do not think this is what Mr. Justice Morris intended. In his first report, he was not talking about this type of structure. He was pointing out that there was a problem of communication within the Garda Síochána and between the Garda Síochána and the Department of Justice, Equality and Law Reform. He has pointed out the same thing in his second report.
I am not sure that the proposed inspectorate will deal with this problem. The Minister does not know what is going on in the Garda Síochána, other than what the Garda Commissioner tells him. This is an attempt to provide some form of inspection, whereby somebody will undertake inspections and inquiries. It is a poor substitute, however, for a structure that would have in-built inspection and accountability mechanisms, which would have been provided had we gone down the road of having a Garda authority. In the latter case, an authority would produce plans in consultation with the Garda Commissioner and the Minister. A Garda authority would also be involved in the monitoring process and would produce reports. It would entail a different structure. Even with the proposed inspectorate, one will still have a situation where the wool will be pulled over the eyes of the Department and the Minister.
As regards what is happening within the Garda Síochána, the Minister simply passes on what the Garda Commissioner tells him and does not have any widely established mechanism to inform him independently of the true nature of what is occurring. A three person inspectorate will be hit and miss. It will visit some areas from time to time and will come back with inspection reports. The proposed inspectorate will be independent but we are talking about over 600 Garda stations and 14,000 gardaí — whenever the additional 2,000 turn up. At present, there are 12,000 gardaí.
We will be waiting a while.
We are discussing a large body of people and property. The inspectorate has a useful role but it will not deal with the recommendations in the Morris report that there should be proper management and supervision within the force in order to ensure that there should not be a recurrence of the activities that took place in Donegal over a ten-year period. The Garda did not have structures to detect these activities and the section fails to ensure this will not happen again.
The objective of the inspectorate is outlined in section 109(1). Can it achieve that objective in its own way? Is its function in section 109(2) to achieve the objective set out in section 109(1) or is it the responsibility of the inspectorate to decide what it will do? How it will do it to ensure resources are effectively and efficiently used?
We are into high metaphysics in terms of distinguishing between objectives and functions. The objective is to ensure that the resources available to the Garda are used to achieve and maintain the highest levels of efficiency and effectiveness in its operation as measured by reference to the best standards of comparable service. It is a value for money exercise. The inspectorate's function is to carry out activities in support of its objective.
Would this be separate from what the Minister asks the inspectorate to do?
No.
That was the purpose of my amendment.
I thought the inspectorate would have independence to attain its objective.
Under section 40, the Garda Commissioner has an obligation to keep the Minister fully informed of matters about significant developments relating to the preservation of peace and public order in the State, the protection of life and property in the State and the protection of the security of the State and any other matter that in his opinion should be brought to the Minister's attention.
He must do that anyway.
He must keep me fully informed. This is a positive obligation.
If he does not, is he negligent?
I do not suggest that he is negligent. I have huge confidence in Commissioner Conroy. However, a positive statutory obligation on the Garda Commissioner to discharge his duties along the lines I outlined has never been provided.
Judge Morris indicated that the lines of communications in Garda headquarters were inadequate.
The inspectorate will only be one tool in developing this relationship to a satisfactory standard, while flow of information is another. Peter Berry was Accounting Officer of the Department for many years and during his time the Garda, which was smaller and had fewer crimes to deal with, was micro-managed.
A number of major cataclysmic events occurred during his reign.
Nothing happened in the Garda about which he was not aware. As Accounting Officer for the force, he had a strong, hands-on, day to day relationship with the commissioner. He received daily reports from the force and, where appropriate, he directed the policing of the State from the Department.
He took appropriate action when necessary.
The pendulum then swung in completely the opposite direction to the point where the "operational independence" of the force was the great catchphrase and the circumstances in Donegal resulted. As Judge Morris stated, there was wholly inadequate communication and the Department was completely oblivious to what was going on.
That will not be changed by the legislation.
Things have changed.
They have not.
They have changed in the sense that, even without legislative amendment, the complete hands-off approach is as unacceptable as the complete hands-on approach and a happy mean can be achieved. The Minister, as the person who is politically accountable, must know what is happening and Judge Morris said that he or she cannot be accountable to the Dáil unless he or she has a good idea about what is happening. While that does not mean the Minister must be chief of police, there must be a good information flow between the Minister and the Garda Commissioner.
And also a good flow of reliable information.
The Minister must be in a position regarding the matters covered by the inspectorate to initiate his or her own inquiries to establish whether what he or she is being told is acceptable and whether the police force is functioning to acceptable standards. These are responses to the Morris report, which include the inspectorate.
Section 40 is much more important. I will table an amendment on Report Stage to insert the following statement, "matters relating to significant developments concerning the effectiveness of the police force in all or in parts of the State". The current Commissioner would draw to my attention a scenario such as that in Donegal.
However, the Garda Commissioner did not know about the problems in Donegal. What structures are in place to enable——
That is another day's work.
How will middle management and line communication be addressed?
That will be addressed by ministerial directives in which I will outline that there must be appropriate information flows. I cannot legislate for an entire mechanism but I fully agree with Deputy Costello that what he does not know, he cannot tell me. As happened in Donegal, Chief Superintendent Fitzpatrick was dysfunctional in carrying out his duties but the problem was that headquarters in Dublin did not know about it. However, the Morris report states that it was the business of headquarters to know about it and not to wait.
The Bill provides that the inspectorate shall be independent in the performance of its functions. I agree that it should report to the Minister and respond to his or her requests but the danger is that it may be tied down too much and may not be able to operate without his or her consent. I have witnessed a few Ministers who, in terms of their actions, did not have the best interests of the State at heart. I have many criticisms of the Minister but I would not accuse him of failing to have the best interests of the country at heart. That said, I have seen instances of this. When we enact legislation, we provide not just for the next change of Government, when it will be in safe hands, but for the future. I am concerned that at some stage there might be a return to office of a venal Minister for Justice, Equality and Law Reform, for example.
I understand the Deputy's point. The next change of Government may well have a satisfactory outcome but it may be much further away than the Deputy thinks.
We will wait a while.
I appreciate the point the Deputy is making. It may be that I have made it too dependent on directions from the Minister. I will consider giving it a degree of spontaneity.
I would be satisfied if that were provided for.
It is not independent at the moment.
I cannot currently tell them that Chief Superintendent Jim O'Keeffe is making a bags of it.
It is confined to particular aspects.
It could be very restrictive in its approach if a Minister were so minded.
While I want to be in a position to ask them to deal with matters because I must carry the can in the Chamber, I do not want them to be in a position whereby they cannot deal with anything unless I press the button.
Perhaps the Minister could nuance the functions and the exercise thereof towards widening the degree of spontaneous independence. On that basis, I will not press my amendment.
Question put and agreed to.
Sections 106 and 107 agreed to.
SECTION 108.
Amendments Nos. 98 and 99 not moved.
Question proposed: "That section 108 stand part of the Bill."
What conditions are envisaged? Will they be full-time or part-time?
This section provides for the terms and conditions of appointment. These are enabling provisions which are not prescriptive. I am feeling my way on this issue. I do not have a clear picture.
If the spontaneity to which the Minister referred comes into play, he will need a different type of person.
It is entirely flexible. I have not yet decided that I want one retired Canadian policeman and two great and good figures from Ireland.
Nuala O'Loan on leave of absence.
I do not yet have a clear picture of what is required. I am relying on the study of the implementation group which may say there is no point having an inspectorate unless the people involved are of a certain calibre, or whether it is necessary to include full-time people or that some part-time people can be involved in the inspectorate.
The Minister might have some idea on Report Stage what type of inspectorates are in other countries.
Will the implementation group chaired by Senator Maurice Hayes look at the inspectorate as well as the ombudsman?
Yes, it will look at everything, including the local committees, reserve and so on.
Question put and agreed to.
SECTION 109.
Amendments Nos. 100 to 104, inclusive, not moved.
Question proposed: "That section 109 stand part of the Bill."
This refers to an inspection taking place and so on. The Minister said that he will again examine this aspect. It refers to three inspectors and support staff at a later stage. Who will conduct these inspections? Can just the three members visit Garda stations or carry out inquiries? This will mean a lot of work for these people. If they are not formal statutory inspectors, the authority for backup staff going into Garda stations and conducting serious work might be questioned. It appears that three inspectors will not get around very much.
It is not a question of the three inspectors doing all the work. Authorised officers will do the work. Some of the work will be poking around Garda stations but the majority of it will be examining the record of the Donegal division in regard to the non-prosecution of X or Y, or comparisons between output on, say, road safety outcomes in different parts of the country and so on. They will be systemic inspections. It will not be a case of just poking around in files to see if anything is wrong. There will be a great deal of benchmarked evaluation of the force and looking across Ireland and asking how it costs X hundred euro to achieve an outcome in Ireland whereas in Northern Ireland it costs half that, twice that or whatever. The number of speed detections in Ireland are half those made in Northern Ireland, even though half as many people carry out the checks there. Systemic issues such as these will be evaluated.
It sounds like an operational audit team which will include a value for money aspect.
The Commissioner has his own internal audit team to do this type of work. However, this is for his guidance. I must know whether outcomes reach an acceptable standard.
It is an operational audit versus a money audit.
Yes.
What is the——
One of its functions is to advise me and make recommendations.
Question put and agreed to.
Sections 110 and 111 agreed to.
SECTION 112.
Question proposed: "That section 112 stand part of the Bill."
I have a notion about accountability to the Oireachtas. I wish again to put forward the view that we should have an Oireachtas security committee. The Select Committee on Justice, Equality, Defence and Women's Rights is not the type of committee I have in mind because it is so bitty and there is so much legislation. We should have an Oireachtas security committee of senior Members of the Oireachtas where matters of a security nature could be discussed, in confidence or otherwise. I do not want to ape the situation in the UK, something akin to the Privy Council. Issues can arise, not just in regard to the Garda Síochána but other security aspects affecting the country. I mention this in the context of section 112. I hope to see it implemented, if not under this Government, then under the next one. It will be a matter for the Government of the day to deal with the matter. All that is being provided for in this section is that there can be accountability to an Oireachtas committee.
Question put and agreed to.
SECTION 113.
I move amendment No. 105:
In page 72, subsection (2), lines 2 and 3, to delete all words from and including "the" where it firstly occurs in line 2 down to and including "appropriate" in line 3 and substitute the following:
"any or all of the following as the Minister considers appropriate:
(a) the Garda Commissioner;
(b) the Ombudsman Commission;
(c) the Garda Síochána Inspectorate”.
This is a drafting amendment to include the new Garda inspectorate in the provisions of section 113(2) which deals with persons and bodies I consult before regulations are made under the Bill.
Amendment agreed to.
Section 113, as amended, agreed to.
SECTION 114.
Question proposed: "That section 114 stand part of the Bill."
This is a broad area. The committee may say it is amazing that the Minister may make regulations for all of these areas. The Garda Síochána has survived 80 years on the basis of regulations. Deputies might think that in this day and age some of this should be in substantive statutory form. However, I do not want a situation where the force loses its flexibility. One of the advantages of governance through regulations is that it is reasonably flexible so that we do not have to bring a Bill to the House to change such elements as entry requirements, discipline, etc. This section may seem very broad in its ambit but this is necessary to keep the force flexible. Consultation is provided for in subsection (5).
I have a question on subsection (4) with regard to the volunteer members. Does that subsection preclude provision for some payment or remuneration to such members?
Is the Deputy referring to the word "volunteer"?
Yes. I would be concerned that it excludes the possibility of some remuneration of expenses to such people. I worry about the use of the word "volunteer" generally because I suppose every member of the Garda is a volunteer. They are not conscripts.
They could be called by any name. If we called them special constables or reservists, those terms would have a certain connotation. The phrase "volunteer member" was chosen in order to differentiate them from full-time members. It shows that what we have in mind is not "yellow pack", underpaid policing.
I am satisfied as long as the Minister accepts there should be some payment or allowances.
I do. However, I do not want to say too much because the Department of Finance would not want me to do so.
I wish to ask about the regulations. There is a significant amount of operational detail in these regulations with regard to the duties of the different ranks, training, etc. One would assume that these are operational details for which the Garda Commissioner could take responsibility. It seems that it is very much a ministerial hands-on approach.
I draw attention to a detail I mentioned in the Seanad. It was as a result of a discussion in that House that this was included. Subsection (2) states "Regulations under subsection (1)(i) shall include provision for the establishment of promotion boards comprising 3 members, one of whom (but not the chairperson) shall be a member of the Garda Síochána.” This means that the majority of the board will be independent members and the chair of the board will be an independent person.
It is a complete myth that ministerial politics somehow play a part in promotions. I assure the House that I have never had hand, act or part, directly or indirectly, in influencing a promotional decision in the Garda Síochána. That said, I find it interesting that people write letters assuming I will intervene. I throw such letters in the bin. There is a perception in the Garda Síochána that the promotional system is cliquish. I do not know whether that is a fair perception. Some uniformed members think detectives get a better shake of the brush than they do. I want to end, once and for all, the notion that promotion is not on merit. The promotion boards are a revolutionary change in that they have non-Garda members.
We could spend a long time discussing that issue because there are two different systems for the different grades. We could ask why there is not one system for everybody. My point is that there is much operational material in section 114 that should be dealt with by the commissioner rather than by the Minister. The Minister has much other work to do rather than getting bogged down with logistical and operational matters. If we had a Garda authority, we could deal with promotions on a fairer basis and with many of these operational issues.
Putting in a Garda authority is not the answer to everything. There is an organic process with regard to matters such as the maximum numbers in each rank. I do not spend all day wondering whether there should be 36 or 48 inspectors. These matters are dealt with under the process. They are set out in regulation form in order that there is internal order in terms of how the police force is run. It should not be left to the commissioner to make these decisions. He has operational discretion but matters such as payment rates, discipline, promotion, resignation requirements, etc., are dealt with in the form of regulations which are signed off by the Minister. They are rarely the subject of significant new initiatives by the Minister. They are left there. A significant number of the regulations are accumulated — in a way similar to what happens in Europe under an acquis communautaire and are put in place by agreement. Touching them is like touching a house of cards; such a house will fall if it is touched.
If a security committee was formed, as suggested by Deputy Jim O'Keeffe, it could examine these matters in private rather in public.
Question put and agreed to.
SECTION 115.
I move amendment No 106:
In page 76, subsection (7), line 2, to delete "of" and substitute "not exceeding".
This is a drafting amendment and it provides for the usual formulation. With regard to section 115, it will be necessary to ensure that any cases that are in the process of being dealt with under the 1989 discipline regulations will continue under that regime when the new regulations come into effect. I intend to table an amendment on Report Stage to provide for this.
Why is the penalty in this instance different to that, €3,000 or imprisonment for a term not exceeding 12 months, under section 73?
One could also argue that it is a summary conviction.
It is a summary conviction and the penalty is €3,000 and a period of imprisonment for a term not exceeding 12 months.
Why is the penalty €3,000 and 12 months in one instance and €2,500 and six months in the other?
It is drift in the construction of the Bill. I will consider standardising it at one rate or the other.
Amendment agreed to.
Section 115, as amended, agreed to.
Section 116 agreed to.
SECTION 117.
Question proposed "That section 117 stand part of the Bill."
I have a problem with regard to the guide to the regulations and the restrictions on the Ombudsman Commission or its officers. I presume that every one of the officers would be bound by the Official Secrets Act.
They might be subject to the Official Secrets Act. If the Ombudsman Commission recruits a number of seconded British policemen, it is essential that I will be in a position to say that they cannot walk into an office anywhere in Ireland and ask to be shown State secrets. That would not be acceptable. If the Ombudsman Commission had three investigators who might be in a position to simply say that they, of their own volition, would examine State security issues, I could be in trouble.
Question put and agreed to.
SECTION 118.
Question proposed: "That section 118 stand part of the Bill."
What is the reward fund?
I do not know much about this.
I will renew my request for information on Report Stage.
I know about the secret service Vote.
It appears to be for the benefit of members.
The reward fund was set up under section 18 of the 1925 Act. Payments from the fund are made by way of awards, such as the Scott medal, approved by the Garda Commissioner.
It is more an award rather than a reward.
The fund's sources of income are disciplinary fines imposed on members and fines and penalties payable on a conviction.
Would a person receive money as well as the Scott medal?
No but the money is spent to buy Scott medals.
Question put and agreed to.
Sections 119 to 121, inclusive, agreed to.
SECTION 122.
I move amendment No. 107:
In page 78, subsection (2)(b), line 31, before “designate” to insert “following a prescribed period of training,”.
This section deals with the exercise of power by security officers. I am concerned that there would be some requirement that they have some period of training before they would be given these powers.
I do not want to stipulate in the legislation what the training will be. However, I will consider providing explicit provision for training.
Before we deal with Schedule 1, I wish to indicate that I intend to launch a new scheme for community CCTV in the future. The situation in respect of CCTV has been a little bit constipated. I now want to see progress. I am advised by the Office of the Attorney General that if I am go down that road, I should have an explicit statutory power. I will insert it into this section.
Amendment, by leave, withdrawn.
Section 122 agreed to.
SCHEDULE 1.
I move amendment No. 108:
In page 81, between lines 7 and 8, to insert the following:
|
No. 31 of 1924 |
Dublin Police Act 1924 |
Section 12 |
".
This is a technical amendment.
Amendment agreed to.
Schedule 1, as amended, agreed to.
SCHEDULE 2.
Question proposed: "That Schedule 2 be Schedule 2 to the Bill."
There is a provision under the Dublin Police Act 1924 allowing the Minister to appoint a person to make an inquiry in circumstances not provided for by the other inquiries in this Bill. I intend to save that provision or reintroduce it in some shape or form.
Question put and agreed to.
Schedules 3 to 5, inclusive, agreed to.
Title agreed to.