Amendments Nos. 1, 2 and 3 are being taken together, by agreement.
Private Members' Business. - Garda Síochána (Complaints) Bill, 1985: Report Stage.
I move amendment No. 1:
In page 4, to delete lines 3 to 5 and substitute:
"or given by a person through his solicitor or a parent, guardian or other person includes, where the context so requires, the solicitor of the person or a parent, guardian or other person, as the case may be".
These amendments are being moved to meet the point made by Deputy Woods on Committee Stage that we should make a specific provision to facilitate mentally handicapped people in using or having access to their rights of complaint. I took his point on Committee Stage, but I made the point at that stage that the amendment he had proposed did not seem entirely to cover the issue. The amendments I have put forward cover the issue in that they do not limit the assistance that a mentally handicapped or mentally ill person might get through a parent or guardian. This is to meet cases where we are not dealing with young persons but with perhaps middle aged or elderly persons. The wording of the amendment is intended to ensure that they can have the assistance of another person. So the three of them go together as a package.
We have had the somewhat unusual procedure of having a break and the Minister putting together in the interval amendments which he considered might be appropriate. I appreciate the pressure which the Minister was under for this period to get the amendments technically correct. I also appreciate the fact that he has included this amendment in the Garda Síochána (Complaints) Bill before it leaves Dáil Éireann. I was very anxious that the provisions relating to the under 17-year-olds would be extended to include the mentally handicapped as well. The Minister has found a means of doing this. Those who are involved with the mentally handicapped will greatly appreciate this. It also brings this provision into line with the measures we have taken jointly in the House with regard to safeguards. The Minister's amendment No.1 reads:
In page 4, to delete lines 3 to 5 and substitute:
"or given by a person through his solicitor or a parent, guardian or other person includes, where the context so requires, the solicitor of the person or a parent, guardian or other person, as the case may be;"
This is in the definition section to cover the fact that the Minister is making the second amendment in the later section, section 4 (1), which subsection will now read:
A member of the public who is directly affected by, or who witnesses, any conduct of a member and who wishes to have a complaint concerning that conduct considered by the Board shall himself or through his solicitor or, in the case of a person under the age of seventeen years, through his parent or guardian or, in the case of a person who is mentally handicapped or mentally ill, through his parent or guardian or some other person interested in his welfare...
The Minister's amendment meets the requirement very well. It means that, first, a mentally handicapped person is included, which I asked the Minister to do on Committee Stage. Secondly, it means that the Minister's suggestion on Committee Stage that not only should a parent or guardian be covered in that case, but also a suitable person or friend of the mentally handicapped person, which might be more appropriate when one speaks of someone who is in the older age group and is mentally ill or mentally handicapped. I recognise that the amendment arose from the joint discussion across the House prompted, in the first instance, by the amendments which I put down in that regard and by the Minister's own views and advice on how this could be done.
The third amendment is as follows:
In Committee amendment No. 10, in the fifth to seventh lines, to delete "his solicitor or, in the case of a person under the age of seventeen years, a parent or guardian" and to substitute "the person through whom he makes the complaint".
That subsection would now read as follows: "A complainant who makes a complaint to a member under paragraph (a) of this subsection shall be presumed, for the purpose of that paragraph, to wish to have his complaint considered by the Board unless at the time of the making of the complaint he himself, or the person through whom he makes the complaint..."
That will cover the different circumstances which arise in relation to the mentally handicapped person and the under 17 year old. The first and third amendments are consequent on making the change in the second amendment. I thank the Minister for giving consideration to that aspect, for making the appropriate amendments in the time available and for putting them down on Report Stage. I am happy that the mentally handicapped and mentally ill have been safeguarded in this way. I willingly support the three amendments put down by the Minister.
Before concluding, I should like to point out that there are two textual errors in the circulated text of amendment No.2. At the end of the third line, it should read "through a parent or guardian" instead of "through his parent or guardian". This is to line up with an amendment that we made previously on Committee Stage.
In the penultimate line after "parent or guardian" it should read: "or some other person interested in his welfare".
Amendment agreed to.
I move amendment No. 2:
In page 4, line 44, after "guardian", to insert "or, in the case of a person who is mentally handicapped or mentally ill, through his parent or guardian or some person interested in his welfare".
Amendment agreed to.
I move amendment No. 3:
In committee amendment No. 10, in the fifth to seventh lines, to delete "his solicitor or, in the case of a person under the age of seventeen years, a parent or guardian" and to substitute "the person through whom he makes the complaint".
Amendment agreed to.
I move amendment No.4:
In page 9, line 14, to delete "shall" and to substitute "may".
Arising from an amendment which Deputy Mac Giolla and Deputy De Rossa tabled to paragraph (b) of subsection (6) of section 6, I considered the provisions of the subsection as a whole. Deputy Mac Giolla suggested that it might meet the point that he was making if the word "may" were substituted for "shall" in paragraph (b). Having considered that matter since we adjourned before Private Members' Business, I must say that I am still not inclined to make the amendment suggested, for the reasons I outlined earlier this evening. In the circumstances dealt with in paragraph (b), the subject matter of the complaints will already have been determined by a court as a result of civil proceedings. As I said earlier, neither we here in the House nor, indeed, the board should engage in the exercise of second guessing the court.
Some different considerations arise in the context of paragraph (a) of that subsection. There, proceedings will have been initiated but no hearing of the matter will have taken place. In those circumstances, I believe that the board should have a discretion to undertake their duties under the Act, even in those cases where it would not be expected that the board would refer the matter to a tribunal in advance of a court hearing. In short, having reconsidered the matter in relation to paragraph (b) of that subsection and to take an account of the discussion we had earlier, I do not feel disposed to make the amendment suggested earlier. As I have said, I do not think that either the Legislature or the board should be put in the position of second guessing or looking behind the court's decisions. There must be a point where we have some finality. That is a proper point at which to secure that.
The Minister has rightly said, in relation to section 6 (6) (a) that where civil proceedings or criminal proceedings have been instituted and have not been finally determined and the board consider that in those proceedings it is likely that the court will determine an issue relevant to or concerning the conduct alleged in a complaint, the board as they stand at the moment shall postpone the taking of any action.
The Minister is proposing to give the board discretion at that point. He says the board may postpone the taking of any action or further action under this Act in relation to the complaint until the civil proceedings or criminal proceedings as the case may be have been finally determined. I recognise that that would allow the board to take an action they might regard as appropriate while leaving aside actions which they might consider to be inappropriate at that time. This would, therefore, give the board a discretion. Consequently this is a satisfactory arrangement.
Amendment agreed to.
I move amendment No.5:
In page 15, between lines 41 and 42, to insert the following:
"12. (1) A person shall not disclose confidential information obtained by him while performing functions as a member of the Board, a tribunal or the Appeal Board, or as a member of the staff of the Board, unless he is duly authorised to do so.
(2) In this section——
`confidential' means that which is expressed to be confidential either as regards particular information or as regards information of a particular class or description;
`duly authorised' means, in the case of a member of the Appeal Board, authorised by the Appeal Board and, in any other case, authorised by the Board.
(3) A person who contravenes subsection (1) of this section shall be guilty of an offence and shall be liable on summary conviction to a fine not exceeding £700 or to imprisonment for a term not exceeding six months or to both.".
This amendment proposes to insert a new section before section 12. It arises from an amendment on the same subject put down by Deputy Woods on Committee Stage which I undertook to consider before we came to Report Stage. The amendment before us provides for restrictions on the disclosure of confidential information by members of the board or tribunal, or by members of the appeal board, or by members of the staff unless they are duly authorised to do so. The text before us follows the pattern of section 37 of the Postal and Telecommunications Services Act, 1983, which deals with the non-disclosure of information by members of An Post and consultants, advisers and members of the staff. Working on the basis of that precedent I take the view that the amendment before us covers all the matters of concern raised by Deputy Woods' earlier amendment. I would point out in particular that it would be possible with the authority of the complaints board, or the appeal board as the case may be, to disclose information required for the purposes of court proceedings. It also provides for penalties in line with the suggestion made earlier. A penalty would be an essential part of a provision of this kind.
The Minister has made my day because I have been arguing in favour of this measure for a long time. It was included in the original draft Garda Síochána Complaints Commission which I put together some time ago. I felt it was important to have it included in this section. I appreciate what was said earlier about the Official Secrets Act having its own partial effect. It is very valuable to do what the Minister is now doing. This provides very clearly and positively in this Act a section which will state that in page 15 of the Act, between lines 41 and 42, we are inserting what in effect will be a new section 12. It is in line with what I suggested earlier, that is, that a person shall not disclose confidential information obtained by him while performing functions as a member of the board, a tribunal or the appeal board, or as a member of the staff of the board unless he is duly authorised to do so. In this section the word "confidential" means that which is expressed to be confidential either as regards particular information or as regards information of a particular class or description duly authorised in the case of a member of the appeal board, authorised by the appeal board and in any other case authorised by the board. Subsection (3) is the penalty section. It states that a person who contravenes subsection (1) of this section shall be guilty of an offence and shall be liable on summary conviction to a fine not exceeding £700 or to imprisonment for a term not exceeding six months or to both. Some people may feel that this is a little draconian. As the Minister suggested it applies in other Acts. It also applies in the disclosure section in relation to the office of the Ombudsman. It is an important provision. In the Ombudsman Act, 1980, section 9 deals with secrecy of information. It states that information, or a document, or thing obtained by the Ombudsman or his officers in the course of or for the purpose of preliminary examination or investigation under this Act shall not be disclosed except for specific purposes.
It is valuable to have it stated quite clearly and explicitly in the Act so that it is there as a clear reminder to anyone involved. This is very important not only for the members of the board but also for the confidence in the board generally and for the members of the Garda Síochána who might be dealing with the board. It is very important that press leaks do not take place from a board such as this. These matters can be quite sensitive and very confidential and should be dealt with in that way. This is a protection for the members of the Garda Síochána and for the public who are involved in any way with the board. I hope the business can be conducted in a dignified and confidential way with information being disclosed only for very genuine authorised purposes.
Too often we find from the experience of bodies and boards that matters are leaked out mischievously by somebody along the line. It is a very disappointing occurence and can be very damaging to the individuals involved. As a nation we should learn to deal with these matters with genuine integrity, honesty and dignity. If we could, there would be much more confidence in the organs of the State. It is very valuable to have it clearly and explicitly stated in the Act. Having sought for some time to protect those members of the force who are in any way involved with the activities of the board and also those members of the public who are involved, I am very pleased that the Minister has decided to put down an amendment on Report Stage. We have great pleasure in supporting it.
The penalties proposed are the same as those which apply in the case of the failure of a witness to appear before a tribunal or appeal board. The maximum monetary penalty provided for under the Official Secrets Act, 1963, was set at £100 which would be the equivalent in today's money of somewhere over £700. The other sanction provided for in the Official Secrets Act was imprisonment for six months, which is repeated here.
Amendment agreed to.
I move amendment No. 6:
In page 24, between lines 43 and 44, to insert the following:
"(c) the membership of the Appeal Board shall not include any person who is or has been a member of the Garda Síochána."
This amendment provides that the membership of the appeal board shall not include either serving members or ex-members of the Garda Síochána. This amendment brings the provisions in relation to the appeal board into line with those relating to the complaints board in respect of which on Committee Stage I moved a similar amendment. Of course, the position of the Garda Commissioner or his nominee had to be protected in relation to the complaints board. This amendment together with the one which I have just mentioned will substantially meet the concerns set out by Deputy Woods on his Committee Stage amendment No. 45. Part of that amendment stated that a member of any one of these boards should cease to hold office on reaching the age of 70. It is matter of settled practice on the Government side that the Government do not appoint persons to semi-State boards who are over the age of 70. I would prefer to remain with that practice rather than to enshrine it specifically in an amendment of this kind. What it means, of course, is that serving members of these boards who reach the age of 70 during their period of office continue on until the end of that period of office but are not then reappointed.
I would like to say that in this respect also the Minister has made my day. It is crucial that the appeal board be entirely, absolutely and without reservation seen to be independent so that the members of the Garda Síochána can look to that board and say that it is going to be completely independent if it goes to an appeal situation. The members of the public can do likewise. This is perhaps the compromise in the overall arrangement. I regard it as a very valuable development. My amendment was for a serving member of the Garda Síochána and I would not have been so concerned about someone who would have been a member previously. The Minister has taken that point and has raised it——
He might take it back.
No, he will not take it back.
Make me an offer.
I would not have been concerned. In any event, the main point is that the appeal board can be seen by those who will be involved to be clearly an independent board. The appeal board will consist of a chairman and two ordinary members. It will be appointed from time to time as occasion requires by the Government and, subject to the provisions of the Schedule, will hold office upon such terms and conditions as the Government may determine. The appeal board is a very select, specialised small board. In terms of its membership the chairman of the appeal board shall be a judge of the Circuit Court. At least one of the ordinary members of the appeal board shall be a practising barrister or a practising solicitor of at least ten years' standing.
If the chairman of the appeal board ceases during his term of office as such chairman to be a judge of the Circuit Court or if an ordinary member of the appeal board who is a practising barrister or a practising solicitor at the time of his appointment ceases during his term of office as such member to be a practising barrister or a practising solicitor, he shall there upon cease, in the case of such chairman, to be such chairman and to be a member of the appeal board and, in the case of such ordinary member, to be a member of the appeal board. The position in relation to those is laid out quite clearly. By ensuring that the appeal board will be clearly seen as a final court of appeal in any instance it will strengthen the body very considerably. It will ensure that it commands wider respect and recognition in its independence in relation to the appeal system. While, as the Minister knows, I from a purely public administration point of view believe that it probably would be desirable to have that board independent of the Commissioner, with the arrangements which are now being made there will be provision for representatives of the Garda associations as well as the Minister and the Commissioner. That in a way will keep a balance between management and the members.
As far as the appeal board is concerned, this amendment will make it quite clear that it is independent, with a judge at its head. This will help to resolve any problems which might arise later on, because we get occasional cases where there may be much public concern about a particular issue. Fair enough, we are only talking about the odd or rare issue; but as we all know in this House those issues do occur from time to time. When they do we have to be able to point to some totally independent system which will deal with those kind of cases. As I said earlier, the vast majority of cases can be dealt with by having a system which people can rely on. But there will be occasional problems which will call for a very clear and total independence. The appeal board will provide that kind of independence. With the Minister very clearly making this arrangement and accepting part of my amendment, it will strengthen the appeal board in this Act.
I am quite certain that occasions will arise when the Minister of the day, the members of the Garda Síochána and Members of this House, will be very glad to be able to point to the appeal board as constituting a totally independent complaints system. They will be able to say to people whom it may be difficult to satisfy, because of individual complaints, grievances or whatever: "There it is. It is totally independent of all involvement by the Garda, it has gone to that appeal board and that is that." We in this House can point to that as an excellent system over which we stand completely, there being no question about its general operation with regard to independent appeals.
I am very happy that the Minister has made that arrangement quite clearly by way of this amendment. I can go home happy in the knowledge that some of the things he has done by way of amendments here this evening constitute a good day's work.
I accept what the Minister says about the second part of this amendment—the age of 70 in general practice—that it would not be the intention to go much beyond 70. I very much welcome the Minister's amendment.
Amendment agreed to.
Question: "That the Bill, as amended, be received for final consideration" put and agreed to.
Agreed to take remaining Stage today.