What I was saying was that I welcome the fact that now there is contained in this Bill the statutory provision that the detention sections cannot become law until the regulations are both approved and made. I think the Minister made a relevant point in the context of Deputy Woods' amendment — in the context of the regulations — in that he clearly made the point that, in his amendment, the provision relating to regulations would require, before the detention sections come into operation, that he made his order, whereas Deputy Woods' amendment only provides that the regulations must be approved by the House. That is a relevant and important point to make.
In that context it is not a question of whether the regulations are approved by the House in the context of the protections and the standards of behaviour that the regulations seek to prescribe. What is relevant, when the detention sections become operative, is that these regulations be in existence. We in this House will have an opportunity at a later stage, because of the provisions of the Bill, to discuss the contents of these regulations. It will be the actual nitty-gritty of the contents of the regulations that will be of major importance in this context.
The second aspect of the proposal is the provision of the complaints tribunal. From an early stage the Minister indicated that a complaints tribunal would be provided, that the Bill, in his view, would not become operative until that had been provided. At the commencement of our debate here a year ago there was posed the question as to whether legislation was necessary or whether that could be done by some sort of administrative provision. It is now accepted that legislation is necessary. I welcome the fact that we are taking this further amendment that copperfastens the Minister's undertaking to this House.
There has been a great deal of debate and discussion about the wording of the different amendments before this House. Effectively, in the context of the complaints tribunal, the concern has been to try to tease out to what extent it will be independent and to what extent that independence will apply either in the context of investigation or adjudication of complaints. It is important that the complaints tribunal be seen to be independent. It is important that it be seen to be independent in determining or adjudicating on complaints. It is important that it be seen to be independent in the manner in which it investigates complaints.
I appreciate that the Minister does not want to set up, in a sense, a second police force. But problems of the nature we have seen in Shercock and in the recent case in Kerry, problems with regard to the manner in which the members of the Garda investigated crime, the manner in which they dealt with people held for questioning in Garda stations — even without these detention provisions being made law — give rise to serious worries. The manner in which investigations have been carried out and the ultimate results achieved in the context of court proceedings, in particular in the context of the Shercock case, give rise to considerable worries. In that context, and particularly in the context of the Minister's amendment, it is worth reverting — as we have done many times in the course of this debate — to the Ó Briain report. That report, in dealing with the question of detention and the general problems arising from Garda questioning people in Garda stations sought to deal with the problem of whether the Garda should have independent powers, whether a complaints tribunal should be established, whether it should have independent powers of investigation or of adjudication. That report outlined the problems arising in this area very well.
Paragraphs 36 and 37 of the Ó Briain report deal, first of all, with the nature of the problem. At a later stage that report goes on to deal with the question of whether a tribunal should be independent in the context of its operation. Paragraph 36 states:
In a situation where nine thousand Gardaí exercise police powers daily in our community, it is inevitable that complaints will be made by members of the public against members of the Garda Síochána. At present, investigation of complaints is carried out by a senior officer of the Garda Síochána. Where the complaint involves merely a breach of discipline it will be dealt with by the Garda Commissioner. If a breach of the criminal law is disclosed, the matter will be passed on to the Director of Public Prosecutions, who will decide whether or not to prosecute the offending Garda. Criticism of the present system made to us suggested that it was slow, that it tended to deter most complainants, and that it was manifestly unfair in that it depended on investigation carried out by members of the force who might be less than willing to find fault in the behaviour of a colleague. On the other hand it was argued that most other professional bodies investigate complaints against their own members, that the Garda Síochána was better equipped than any other body to carry out the necessary investigation, and that if improved machinery was required for the investigation of complaints it could be created within the force....
At the end of that paragraph the report referred to the fact that the committee had considered the operation of complaints review bodies in other countries and other police areas.
Paragraph 37 of the Ó Briain report states:
We understand that it is a general complaint that where accusations are made against individual members of police forces, there is a tendency on the part of policemen not to co-operate. This may be due to an understandable reluctance to becoming involved as a witness against a colleague. The "wall of silence" which meets the investigating officers may well make any proper inquiry abortive. There may also arise the added difficulty of cases where the identity of the officer against whom it is sought to make complaint is unknown and unascertainable by the complaining member of the public. If the public has any ground to suspect that there is a "cover-up", it is inevitable that a loss of public confidence in the force will ensue.
In the context of the amendment before the House what is important is to ensure that we are seen by the general public to recognise the necessity, particularly in the light of recent events, for an independent complaints tribunal. I feel that the events in Shercock are still a matter about which other steps may be taken so I fully accept that that is not something we can discuss today in any detail. However, the manner of investigation and the results achieved in that case give rise to and copperfasten the worries expressed in those paragraphs in the Ó Briain report. At paragraph 59 the Ó Briain report states:
The investigation of complaints by members of the public against the Garda Síochána should be brought into line with more enlightened practice in Western Europe. A Complaints Tribunal with a strong independent element should be set up.
They go on to say that they do not feel called upon to spell out how its membership should be composed. That matter would be more properly dealt with in this House during the debate on the complaints tribunal.
The Ó Briain report goes on to state:
Whatever its composition, the membership should be clearly so impartial and above any suggestion of bias that it would earn the respect and co-operation of both Garda Síochána and public. We cannot emphasise too strongly our belief that any such Tribunal must have the wholehearted support of the Gardaí if it is to function effectively...
The two recent cases which have got so much publicity and a number of cases in the past have given rise to a great deal of public concern, as well as concern within the Garda force. The latter point needs to be emphasised. The vast majority of gardaí, who want nothing other than to do their duty and go about their business, are as concerned as any Member of this House about recent events. I have no doubt that they would welcome the establishment of an independent complaints tribunal. There is a need for an independent investigative mechanism.
The Minister indicated that in real terms there was no great difference between the concept envisaged by him and what Deputy Woods envisaged in his amendment. He has indicated the problems he believes could arise with the word "independent" in the context of litigation and the prosecutions which could arise when the detention sections become law if it were suggested that in some way the tribunal accepted by this House was not entirely independent. Obviously there will have to be some level of co-operation between a complaints tribunal and the Garda in the context of investigation. I do not see why there cannot be seconded to a complaints tribunal a number of members of the Garda together with the necessary members of officer rank who will specialise in dealing with complaints. One of the problems at present is not simply the matter of colleagues investigating themselves but that there is not generally an identifiable body of people within the Garda who are recognised not merely as having the commitment to deal with these problems but as having the necessary expertise to be on the scene if tragedies such as the Shercock incident arise, so as to ensure a thorough and proper investigation on the scene immediately in order that persons involved, be they members of the Garda or otherwise, can be brought to book in the courts.
Deputy Woods and Deputy Andrews are suggesting that the Minister is looking for something less independent than I am describing. I would hope that is not the case. It is absolutely essential that whatever tribunal is established is seen to be impartial in its investigative mechanisms and separate from the Garda in adjudicating on complaints. There is also an interaction between the regulations for an independent complaints tribunal as provided for in this amendment in that I have no doubt that it may ultimately be necessary to change the initial regulations as a result of the experience of an independent complaints tribunal. There is an overriding concern to provide all the checks and balances needed to protect members of the general public and gardaí from the type of incidents that occurred recently and to ensure proper accountability.
Some of us who at a very early stage of this Bill indicated our worries and concern would probably like to stray further than the Chair would allow in dealing with the details of the complaints tribunal, but I accept that we cannot do so. I would urge the Minister when framing the regulations to take into account those aspects of the Ó Briain Report which we have not adequately dealt with in this Bill and without which we will not be in a position to provide these protections.
In the context of the independent complaints procedure providing the protection and the detention section not coming into force until it is set up, I do not believe an independent complaints procedure will be able to provide this type of protection unless at the time people are in Garda custody there is an absolute requirement that any questioning which takes place will be videod or taped. I know an amendment has been ruled out on this issue, so I will say no more about it. I think that is absolutely essential and it is something to which the Minister adverted——
