I move amendment No. 1 to Seanad amendment No. 1:
In the third line to delete all words after "provisions" and substitute the following:
"have been enacted by the Oireachtas for the investigation and adjudication of complaints from the public against members of the Garda Síochána by or under the direction of an independent Complaints Commission, and until regulations under section 7 have been approved by the Oireachtas".
We put down that amendment because we believed that the Seanad amendment put down by the Minister was very inadequate, and the Minister has recognised that fact because he has put down the following amendment which states:
In the third line to delete all words after "investigation" and substitute the following:
"of complaints from the public against members of the Garda Síochána not above the rank of chief superintendent and the adjudication by a body other than the Garda Síochána of such complaints have been enacted by the Oireachtas and have come into operation and until regulations under section 7 have been made".
We put down our amendment because the Seanad amendment by the Minister merely stated "... until provisions relating to the investigation and adjudication of complaints... have been made.""Provisions" is a very open term, and it could mean virtually anything. We welcome the fact that the Minister has come here with an amendment from the Seanad because it is going some of the way towards what this House sought to do, and his additional amendment goes somewhat further. In the course of this debate I hope to show that only by going as far as our amendment goes can we provide properly for a full independent complaints commission.
The Minister's amendment does not do what he says it will do. Here we must be concerned about what is in the amendment, not what the Minister is saying outside the House. He has been saying various things outside the House which are not in his new amendment. For instance, he has been saying that the investigations will be under the control of this body which will be separate from the Garda Síochána, but his amendment does not say that and that is why we have to question his amendment. It does not say specifically that the investigations will be under the control of the complaints commission. He may have it in mind that eventually he would see them under that control, but that is not said in the amendment.
The other reason we are not happy with his amendment is that it separates the adjudication from the investigation of complaints. It goes a good way towards what we are looking for by talking about adjudication by a body other than the Garda Síochána, but it does not include the investigation under such a body. It separates the adjudication from the investigation, but we believe both should be by or under the control of the complaints commission. Our amendment seeks to have both adjudication and investigation under the control of the complaints commission.
There is no provision in the Minister's amendment to ensure that this body will be an independent body. It is said it will be a body separate from the Garda Síochána, but this could be a body comprising of any person: for instance, one could say that the Garda Club is a body separate from the Garda Síochána. We want the Minister to come across clearly and honestly and to say he is interested in having an independent body which is separate and seen to be such. If that is what the Minister is interested in having, we do not know why he will not put that down in his amendment. We believe that the independent complaints commission should apply to everyone and that senior gardaí should not be excluded. There should be no discrimination between the members of the Garda Síochána, they should all be equal before the law.
The Minister has come here from the Seanad with his tail between his legs. He would not listen to the House when we put down amendments along these lines asking him to include such provisions in the Bill. We spent a great deal of time in this House discussing the matter before the Bill went to the Seanad. I know there were fairly dramatic developments in the Seanad that may have brought home to him the wisdom of the line put to him in this House. However, he would only give the House vague promises that if it was left to him he would in due course bring in some form of complaints procedure and some form of regulations and we were to take it on that basis.
We are very glad to see that he has come before the House with the amendments. It is far better for us in this House in relation to this Bill to be wise rather than to be clever, and I say that quite genuinely. Many of us here tried hard to be wise about sections of the Bill and it was not an easy thing to do. Certainly Members on both sides tried very hard not to be just clever about this matter. We must bear in mind that we are making provisions that will apply for a long time in the future. Perhaps our interest has been sharpened by recent events. Perhaps our sense of commitment and conviction about some of the measures we were suggesting from our limited experience and our theoretical knowledge of the situation have been strengthened by recent events. It is the duty of the Oireachtas to set down principles and to provide for the checks and balances. It is not enough for the Minister to speak outside this House about such checks and balances if they are not provided in the legislation.
On 5 July when the Bill was leaving this House I wished the Minister the best of luck in the Seanad, and they seem to have been prophetic words. At column 1810 of the Official Report dated 5 July I made the following comment:
We have here a legislative bird without two wings, the regulations and the complaints procedure.
That was the way we felt about it. We had done a great deal of work on the Bill but at the end of the day we were sending it to the Seanad without these two wings. Consequently we are glad that the Minister has come before the House again.
The two areas we are discussing here are particularly important. We are talking about arrest and detention on suspiction. The primary purpose of their legislation is to enable the Garda Síochána to interrogate suspected persons in Garda stations. On page 316 of the Irish Law Reports, 1980, the Chief Justice said:
It has been stated many times in our courts that there is no such procedure permitted by the law as holding for questioning or detaining on any pretext except pursuant to a court order or for the purpose of charging and bringing the person detained before a court. Any other purpose is unknown to the law and constitutes a flagrant and unwarranted interference with the liberty of the citizen. The only exceptions are section 30 of the Offences Against the State Act, 1939, and section 2 of the Emergency Powers Act, 1976.
Both of those deal with subversive crimes.
Section 4 deals with detention after arrest. In an article which the Minister wrote for the Irish Independent of October 27 the Minister said the Bill gives power to detain persons for questioning not, be it noted, power to arrest, because there are no new powers of arrest in the Bill. The whole purpose of this section is to provide for detention after arrest. As we understand it, these are arrested people who are being detained. Section 5 deals with access to a solicitor and notification of detention. Section 6 relates to the powers of the Garda Síochána in relation to detained persons. Section 8 deals with the destruction of records. Section 9 deals with applications to persons in custody under section 30 of the Offences Against the State Act, 1939. Section 7 deals with regulations regarding the treatment of persons in custody.
This amendment deals with this very important area and the new developments which are taking place under this Bill. From the time this Bill was first introduced the Minister has been promising us a complaints procedure. There was a supplementary memorandum to the Bill in October 1983. We asked why this small extra supplementary memorandum came with the Bill. It seemed to be a last minute decision or a small hiccup in the Minister's programme in bringing the Bill before the House. That little memorandum said that "the Minister wishes to state, for the information of Deputies and Senators, that the Government have decided on his recommendation that those provisions in the Bill giving increased powers to the Garda Síochána, and which will come into operation only when a ministerial order to that effect is made, will not be brought into force until a complaints procedure involving an assessment by an independent person or tribunal has been established."
It went on to say that "it has not yet been decided whether legislation will be necessary to establish such a procedure or whether it will be introduced at least in the first instance on an administrative basis." It concluded by saying that if legislation were necessary it would in any event have to be a separate Bill as the present Bill is concerned with criminal law procedures and could not appropriately deal with non-criminal procedures. We were very concerned about what that supplementary memorandum meant, and we questioned it in the House. We wondered what was going on. Since that time the Minister has been promising us a complaints procedure involving an assessment by an independent person or tribunal. The Minister seemed to be fairly clear at that stage that it would be an independent person or tribunal.
At different stages we tried to establish what the position was in relation to this complaints procedure. It was promised again on the Second Stage of the Bill. In reply to a Parliamentary Question on 8 March 1984 the Minister told Deputy Mac Giolla and myself that the provisions giving increased power to the Garda would not be brought into operation until a complaints procedure involving an assessment by an independent person or tribunal had been established. He said:
The new procedures will not be brought into operation until both Houses of the Oireachtas have had an opportunity to discuss it. I am dealing with this matter with all possible speed, and although some further work, including consultations with garda associations and so on, is necessary, I expect to be in a position to inform the House of the proposals in the near future.
He concluded by saying:
I can say that at present the indications are that the scheme will be a statutory rather than an administrative scheme.
In April we had the Committee Stage of the Bill and again the Minister promised that a complaints procedure would be forthcoming. In July it was not available when the Bill was being finalised in the House. We pleaded with the Minister to bring in a complaints procedure in parallel with the Bill or as part of the Bill.
In June of this year a document was leaked which indicated that certain things were happening. On June 15 1984 an article appeared in The Irish Times which said that a Garda Síochána complaints board composed of a chairman and up to six members, with a permanent secretariat, whose chief executive officer would have significant powers of investigation would be proposed shortly by the Government in line with the commitment given by the Minister for Justice when the Criminal Justice Bill was introduced in the Dáil. It said the board would be able to investigate allegations against the Garda. Further down it said that the proposals were finalised recently by the Department of Justice and had been circulated to the office of the Attorney General, the Garda Commissioner and several other senior officers plus the Garda representative organisations, and the board members would include the Garda Commissioner or an assistant commissioner nominated by him. It went on to give various other details of the Minister's proposals. On June 15 we got some indication that the Minister was doing something further about the whole question.
Why did not the Minister come forward with these provisions? How can it take so long to make such a document available to us? It cannot be so difficult that it takes such a long time. When you look at that background and at the amendments before us, you wonder what exactly is happening. In an article in the Garda News, volume 3, No. 2, March 1984, the views of the Garda are given and a number of points are made. One is that in Britain the most dramatic changes in police complaints procedures have occurred in recent years. It goes on to say that a police complaints board was established in 1976 and that a copy of every complaint had to be sent to the board, which had no investigative role.
Further it said that following a White Paper issued by the Home Office in 1981, a new complaints system was incorporated into the Police and Criminal Evidence Bill, 1983 and the principal changes proposed were the appointment of independent assessors to oversee policy investigation and a wider investigative role for the Police Complaints Board.
We get some idea of what is happening in Britain from these articles and the conferences which are taking place. The conclusion in this country was that, reservations apart, most reasonable people would probably favour a scheme if it conformed to certain principles. The Association of Garda Sergeants and Inspectors set out their views in relation to the principles on which the scheme should be based, and it is to be noted that it should incorporate an independent element at the adjudication stage.
Are we beginning to see how the Minister now separates out adjudication from investigation? Again, the Garda Review, volume 12, No. 4, April 1984 had an article under the heading of “Extracts from the address of Michael F. Murray, AGSI National Executive on the Criminal Justice Bill”. This referred to a speech which Mr. Murray gave on April 2, 1984.
The article stated:
It is now over five months since the Criminal Justice Bill was introduced and we still have no knowledge of what is intended in the complaints procedures.
It is stated further:
The basic question we must ask ourselves here is, do we agree with the introduction of an independent element?
Further down it is stated:
On balance, I favour the second view. If we honestly and sincerely want to have contact with and support from the community, we must stop thinking of ourselves as a brotherly band beleaguered by hostile forces and start thinking of ourselves more as public servants within a specialised law enforcement organisation. I put it to you, therefore, that it is in our best interests to be in favour of some from of independent element in our complaints procedures.
Here we see the scene changing and developing outside the House. Mr. Murray stressed:
(1) The investigation of complaints must be conducted by gardaí. We cannot have independent investigators involved.
He summarises the position then as follows:
Therefore, I am suggesting that we should agree in principle to some independent element in our complaints procedures and (2) that element should not be extended beyond the adjudication stage and the new system should be along the lines I have suggested.
When we try to see why the Minister is at such great pains to separate adjudication from investigation, it becomes fairly clear that he is subject to other pressures and that these are being exerted in favour of a particular system. I have no objection to that. Any organisation have the right to bring forward their own view, but the Minister has a duty far beyond that. He has a duty to the people and to the House to ensure that this proposed complaints procedure is clearly seen to be independent, both in its powers of investigation and adjudication.
From the outset we have maintained a consistent position in relation to this area. I might comment on the Minister's article, again in The Irish Independent of October 27, page 8, in which he referred to the complaints procedure. This made quite a few people wonder what exactly was happening. The Minister's style seems to be to talk outside to the media in special articles like this one and not be quite so forthcoming here in the House, or certainly to put the House after the articles outside it, which I think is an affront to the House, but that is a matter of personal opinion. We find under the heading of complaints procedure that the Minister says:
The establishment of a body other than the Garda Síochána to deal with complaints against the gardaí from members of the public and to supervise the investigation of complaints and in appropriate cases to carry out the investigation itself is a further safeguard.
When I read that, I asked what we were talking about. We looked at the Minister's amendment which separated quite clearly investigation from adjudication. We look at what the Minister writes under his own hand — it is not a source close to the Minister, or a spokesman or spokesperson, or anything else, it is the Minister as a guest writer writing under his own hand. If this is what the Minister intends, I do not see why he does not accept the amendment which we are putting before him.