Vol. 543 No. 5
87 Mr. Quinn asked the Minister for Justice, Equality and Law Reform if his attention has been drawn to the concerns expressed by the Equality Authority at the finding that the Garda is exempt from the Equal Status Act, 2000; the steps he plans to take to address the concerns raised by the authority; and if he will make a statement on the matter. [27668/01]
I assume the Deputy is referring to the comments of the Equality Authority on the case of Donovan v Donnellan on which the Office of the Director of Equality Investigations issued a preliminary decision on 17 October 2001. The background to the case is that on 8 August 2000 four horses were wandering on the public road in Gort, County Galway. The Garda investigated this incident and prosecuted Mr. Donovan, who is a member of the Traveller community, because he owned at least one of the horses. Mr. Donovan made a complaint to the Director of Equality Investigations claiming the Garda discriminated against him. While he accepted he was guilty of the offence, he claimed that he did not own all the horses and that the Garda did not summon the other horse owners who were not Travellers.
Contrary to what is stated in the Deputy's question, the equality officer did not find that the Garda is exempt from the Equal Status Act, 2000, nor did the Equality Authority in its comments make such a claim. The equality officer decided that the investigation and prosecution of crime are not services within the meaning of section 2(1) of the Act and therefore the complaint was outside the scope of the Act. However, the equality officer was of the view that: "Clearly certain aspects of the service provided by the gardaí may be services within the meaning defined in the Act, e.g. a garda witnessing a passport application, giving directions or taking a complaint." The decision of the equality officer is not surprising and indeed is consistent with the intention of the Oireachtas in passing the Bill.
I refer the Deputy to the statement I made during the Dáil debate on this legislation on 15 December 1999 which clearly illustrates the point that the Oireachtas intended the service aspects of policing to be covered by the Act but the investigation and prosecution of crime to be excluded from its scope:
Not all actions of the State vis-à-vis members of the public can be regarded as services. There is a difference between controlling duties exercised by the State and services provided by the State. I am advised that immigration and citizenship matters, for example, are not services within the meaning of the Equal Status Bill but rather an expression of the State's duty as a sovereign power to control who it admits to the State. Controlling duties in the areas of policing, defence and prisons would likewise not be regarded as services. The service aspect of policing, immigration, defence and prisons will, however, come within the scope of the Bill. For example, while a decision to grant a visa would not be covered by the Equal Status Bill, the interaction between officials and the visa applicant and collateral services and facilities, such as access to buildings and information, would come within the scope of the legislation.
In the policing area, for example, while riot control or apprehending a criminal gang could not be regarded as services, information and assistance provided by gardaí, including responding to reported crimes, would be regarded as services, within the scope of the equal status legislation. Furthermore, the fact that a controlling duty of the State does not come within the scope of the legislation does not give carte blanche to officials to discriminate in the exercise of such duties.
Additional information.Discrimination or irrationality in the exercise of such controlling duties can be challenged in a High Court constitutional action or in judicial review proceedings. In commenting on the equality investigation in question the equality officer expressed the view that the drafting of the legislation succeeded in excluding from the scope of the Act the controlling duties of the Garda Síochána, including those of the investigation and prosecution of crime, while at the same time legislating that the service aspects of policing come within its scope.
It is a major concern of mine that the Garda Síochána, in the exercise of its core functions, should be totally impartial. The Garda Síochána has taken several initiatives in this respect. In addition to the establishment of the Garda racial and intercultural office, the Garda Síochána has also agreed guiding principles for dealing with interculturalism, including the commitment to treat everyone fairly, regardless of ethnic origin, religious belief, gender, sexual orientation, disability or social background. As part of the Council of Europe human rights and policing initiative, the Garda has established a working group to develop policy and practice on human rights and policing issues. A module regarding obligations under international human rights instruments is a core part of the training of new recruits to the Garda Síochána in Templemore. Traveller representatives take part in Garda training. A Garda project entitled Intercultural Ireland – Mainstreaming the Challenges has been approved for funding under the EU Community Action Programme to combat discrimination.
The Equality Authority has gone on record to highlight the welcome and serious proactive approach to rights issues taken by the Garda Síochána.
Does the Minister intend to look at the legislation again with a view to addressing the issue raised by the Equality Authority? Is he concerned that the director of the Equality Authority raised concerns about this matter? There appears to have been discrimination on grounds of membership of the Traveller community in this case.
Is the Minister aware that at the time of the debate on the Equal Status Bill the national consultative committee on racism and interculturalism expressed concern at the exemption of public authorities and public bodies from certain sections of the legislation?
I have doubts about extending the Equal Status Act to cover the controlling functions of the State. If this argument were accepted, actions taken by the Director of Public Prosecutions and the Judiciary would also be covered. It would be contrary to the independence of the Judiciary and the Director of Public Prosecutions if an equality officer were to have powers to review decisions on arrest, prosecution and conviction.
As I said in the Dáil during the course of the debate, it is open to an aggrieved person who claims to have been discriminated against by the Garda or any other organ of the State to challenge in a High Court constitutional action or in judicial review proceedings. I will, of course, keep under review the need for legislation in this area. However, extending the scope of the Equal Status Act may not be the best method of proceeding in any event.
With regard to the Deputy's second question, I indicated in the course of the Oireachtas debates on the Bill that there is no doubt but that the equal status legislation applies to the State. I was advised that following the landmark Supreme Court judgment in Howard v the Commissioners of Public Works in 1993 it is neither necessary nor desirable to state in legislation that the State is bound thereby. In Ireland the doctrine of crown prerogative whereby the State is not bound by any statute which does not include it expressly or by implication did not survive the enactment of the Constitution in 1937. The uncertainty that had surrounded this issue was finally laid to rest in the landmark Supreme Court judgment in which it was held that the State was bound by the Planning Acts and was in consequence obliged to apply for planning permission before building an interpretative centre.
Accordingly, I was advised that it was unnecessary to state explicitly in the equal status legislation that the State is bound thereby. Indeed, it would have been undesirable to do so, in the same way as it is undesirable to purport to implement the EU Council regulation by way of domestic law.
Written Answers follow Adjournment Debate.
