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Dáil Éireann díospóireacht -
Wednesday, 22 Jun 2005

Vol. 604 No. 5

Garda Síochána Bill 2004 [Seanad]: Report Stage (Resumed).

Debate resumed on amendment No. 12:
In page 10, to delete lines 22 and 23 and substitute the following:
"‘Garda Ombudsman' means Ombudsman an Gharda Síochána established undersection 57;”.
—(Deputy Ó Snodaigh).

We were discussing whether one should have a Garda ombudsman or an ombudsman commission and whether the Minister's current interpretation that "Ombudsman Commission" means the Garda Síochána ombudsman commission established under section 57 was adequate for the present dispensation, considering that he had moved a step further towards redefining the role of the ombudsman commission. It might be desirable to refer to an ombudsman chairperson; the chairperson of the ombudsman commission did not exist when this legislation was first drafted. There was no such individual at that stage, and the Minister had not even envisaged one. He is only now introducing an amendment regarding the establishment of a chairperson, on whom he confers considerable powers. That chairperson will effectively be the ombudsman commission.

The Minister can no longer say it is a commission of three equal persons as set out in the legislation as it stands. His amendments mean that those three persons become one dominant person and two assistants.

This is a new status which requires a new definition. The interpretation as currently laid out is inadequate to cater to the new dispensation that will obtain if the Minister's new amendments are accepted. As we are unlikely to get an opportunity to discuss the amendment in question, through pressures of time and because it is proposed that a guillotine will come into effect tomorrow, I would appreciate if the Minister would indicate where he stands on this issue and give us some idea of the extent of the powers being conferred on the chairman of the ombudsman commission. I also ask him to clarify the adequacy of the current definition.

The amendment is merely a springboard for discussion because we have only reached the interpretation section. However, because reference has been made to the status of the ombudsman commission, I would like to get to the substantive issue. I have tabled a substantive amendment No. 184 which proposes that the office, whether it is called that of the ombudsman or ombudsman commission, should consist of only one person. That is the best way to proceed.

Deputy Costello argued on Committee Stage for the appointment of a chairman and the Minister's amendments in this regard represent some improvement. An acceptance of Deputy Costello's proposal that we should leave the door open to reduce the number of commission members to one would be a further improvement. My strong position, however, is that there should be only one person. That is what the Garda Síochána and the public want. It has worked in Northern Ireland and there is no reason it should not work here.

We have only reached the definition stage and are not at the point where I wish to push my substantive amendment. I hope this amendment will be reached and that the Government will allow us time to debate the Bill fully.

In supporting this amendment, I remind Members that the office of the police ombudsman in the North was established under the Good Friday Agreement. In this context, I ask whether the Minister's opposition to a similar office here means he is now opposed to the Agreement? I would appreciate clarification on this point. If the office of the ombudsman as established in the North under the terms of the Good Friday Agreement is good enough for the people there, why is it not good enough for the people of this State? It should be established here on exactly the same terms as it has been established in the North where, though only in its infancy, it has proved to work well.

One of the main reasons for the establishment of an ombudsman's office is for the purposes of investigation. The recent publication of the second report of the Morris tribunal indicates that such investigative powers are needed. We hear much talk in the media, in this House and elsewhere about the significant number of decent gardaí. I accept that readily and offer no challenge to the contention that substantial numbers of gardaí are decent and honourable people.

Such gardaí must also be protected and an ombudsman's office with full investigative powers is the best way of offering that protection. Rather then window-dressing and trying to delude ourselves in terms of duplication within this office, why not deal with the issue once and for all as has been done elsewhere on this island? It is somewhat strong to say the Northern Ireland model is perfect but it is certainly an excellent example.

The ombudsman's office should be empowered to investigate the use of resources in a general sense. For example, how can one justify the deployment of four detectives to monitor an Easter commemoration for two IRA volunteers shot dead by the Black and Tans in 1920? The attendees at this commemoration ceremony numbered between 18 and 28 and were all local people from a small community area in one section of Dundalk. This gathering warranted the attention of four gardaí in a car.

There is no sense in this. An ombudsman's office should be able to investigate on foot of a complaint into such gross misuses of resources as occurred in this instance. There are countless other past examples in terms of journalists' telephones being bugged and all types of other shenanigans that have gone on in this State for long enough. If there is anything to be said for the decent and honourable gardaí it is that they should be protected. They are entitled to the best protection possible through the establishment of a proper ombudsman's office with singular responsibility in terms of where the buck stops.

There may be some improvement in terms of the identification of one person of the proposed trio with more power than the others. The original suggestion involving a type of committee without a head was absolutely ludicrous and would seem impossible to operate. It was a daft proposal. The new regime proposed by the Minister represents a slight improvement but it falls way short of what he knows would best suit the needs of this State and of the Garda, which protects the citizens of the State. It is not too late for him to change his mind on this and we will not think any worse of him for doing so — it could be argued that there are some who could not think much worse of him anyway.

If the Minister is to represent his office, the Garda and the best interests of the people of this State, if not this island, this is his chance to deal with the ombudsman's office once and for all in the proper way. I commend the amendment.

I wish to start by drawing attention to the remarks made by Deputy Costello regarding, as he put it, the pressure of time on Report Stage of this Bill during which the issue of whether there should be a one-person or a three-person ombudsman would be discussed. It should be put on the record of this House that all sympathy has now evaporated for the proposition that the Opposition parties wanted more time for this debate. Deputy Stagg deliberately ate into the time allocated for this debate——

The Minister did not even turn up for the start of the debate and has still not apologised for that.

The Deputy is shouting again. He will have his opportunity to reply. Deputy Stagg deliberately ate into the time provided by the House for this evening's proceedings by pointless repetitions of votes on Private Members' time.

Votes take place in parliaments.

Democracy is involved.

That cynical behaviour of kicking the ball around in the opposition's own penalty area clearly crowns a day in which quorums were called, half an hour was spent ——

This is schoolboy stuff.

On a point of order, we are discussing issues on Report Stage. The Minister is going off on a tangential lecture against us. He was missing from the House this morning——

I was not.

——and business could not be done.

That is not a point of order.

He was taking a photo in Dublin castle.

Could he not have asked the Minister of State at the Department of Justice, Enterprise and Law Reform with responsibility for children to attend the launch as it concerned children? The Minister, rather than his Minister of State, could have been in the House.

That is not a point of order. I ask the Minister to confine his remarks to the amendment before the house.

The utmost contempt was shown to the House.

The Minister is in possession.

The entire morning's business was lost because of the Minister.

The Deputy is out of order.

The Minister is now lecturing the House as though it is in some way responsible for him.

I point out to the Deputy that it is not a point of order. The Deputy is out of order. The Minister should confine his remarks to the amendment before the House.

Deputy Costello knows that three quarters of an hour of this debate has been chewed up by nonsense.

The entire morning was chewed up by nonsense.

I am happy to continue to the substance of this issue. When the heads of this Bill were first published, I indicated that I was in a consultative process. I abandoned the notion contained in the heads of the Bill as originally published of an inspectorate and said I would do what the Human Rights Commission asked for, which was an ombudsman function equivalent in every respect to the powers conferred on the Northern Ireland Police Ombudsman. I did that.

I also provided, in a State with 26 traditional counties or 28 factual counties, that the function would be carried out by a multi-person body, which is reasonable. The strength of our police force is, in principle, twice and our population more than twice that of Northern Ireland. The functions of our police force are broader than those of a regional constabulary within the United Kingdom. As a result, I believe a one-person ombudsman is not the way forward for this State. The advantages of a multi-person ombudsman include, for example, that while the holder of the office takes holidays each year, other commissioners remain to address issues. If one falls ill or becomes preoccupied with an issue, it is possible, under the terms of this legislation, to delegate some or all functions in respect of certain matters to other members of the commission.

This proposal was put forward on Committee Stage after extensive debate by both Houses. I heard Senator Maurice Hayes, whom I deeply respect, discuss the necessity of a visible figurehead in this matter. An identifiable personality is needed in order to maximise the effectiveness of the office. Having heard that argument, I again modified the proposal and provided for the chairperson of the ombudsman to be appointed as such, to be capable of exercising day-to-day management functions and to be the visible face of the ombudsman commission. In case Deputy Costello is worried about the multi-member ombudsman commission, it is possible, even under this legislation and without accepting the amendments he will later move, for a three-person commission to vest any or all of its powers in the chairperson as it so wishes.

There are advantages in a multi-person ombudsman commission. It is the international norm. Multi-person commissions exist in Britain and in Canada. I am happy to have a multi-person commission but I accept the point made by Senator Maurice Hayes and others that a publicly identifiable individual is advantageous relative to a three-person anonymous corporate body. I provided in the amendments for that eventuality. I am not aware of and do not understand any disadvantage in the possibility that the chairperson and the two other commissioners may sort out their business amongst themselves and operate by a majority vote.

I have continued to listen and be responsive to the debate and adapted to the centre of gravity of public opinion on this issue. Other Members clung to abstract principles which have little weight in practice. The advantages which I see and have argued for in a multi-person commission chaired by a visible head are very clear. The disadvantage has been completely obviated by the creation of a chairman position with a public profile. I have gone further than half way to meet all the legitimate criticisms I heard. I will not go 100% of the way by agreeing that what suits Northern Ireland, which is a small part of these islands, must of necessity suit the South. I find it ironic that Sinn Féin spokespersons argue this aspect of Northern Ireland's policing is the only model we must have, when they regard many other aspects of the policing system there as repugnant and with which they continue to argue about and cavil.

The ombudsman commission which we have put forward, albeit a three-person commission, has more powers than the ombudsman in Northern Ireland. The only qualification in this legislation to the power of the ombudsman which does not apply in Northern Ireland is the power of the Minister to designate intelligence files that are not available for inspection by members of the ombudsman commission as of right but are available on conditional agreement with the Minister. The only reason for this is to mirror the fact, not the fantasy, that intelligence files of the United Kingdom are not available at all to the ombudsman in Northern Ireland. They are simply out of bounds. Instead of saying they are out of bounds in this State, I have provided for their availability, subject to conditionalities based on the security interests of the State.

I am not aware of any sovereign state — it is important to remember this is a sovereign State — that would allow an independent person employing non-citizens to walk into any place containing the state's innermost secrets and to inspect them at random. I know of no country which would agree to that proposition. I will not regard this State as second class or a province of elsewhere. This State is entitled to have a security system equivalent, in so far as we can make it, to that of any other sovereign state.

I want to make one further point. During the course of the day the Labour Party suggested that the amendments I put before the House are designed to allow the Government or me as Minister to see any file I like anywhere and on any occasion for good purpose or for bad, and that is unacceptable. I make it clear that I have not and will not propose this. The press statement the Labour Party issued suggests that these amendments will allow unfettered power to inspect every file, including files concerning Oireachtas Members, our relatives and our political colleagues to my successor or me. Nothing could be further from the truth.

That is what the amendment states.

What I have put in place, and what I stand over completely, is that for the purposes of sovereign Government and accountability to this House, if a dispute arises as to whether a file in the possession of An Garda Síochána should be made accessible to the Executive power of this State, it should only be accessible if the most senior civil servant in my Department, who is not under my direction in this regard, concurs and demands the production of that file. The alternative view would simply be that alone among the sovereign states of the European Union the Irish State would be one in which the police service could withhold matter from the Government in circumstances where the Government wants to carry out its proper function.

The amendments I tabled provide that it is not a matter of political decision. Before it is possible to demand the production of documents the second most senior public servant in the State, the Secretary General of my Department, must have the view that such a demand is appropriate.

The alternative view, and it is not a theoretical view, is that the decision on what the Government could see in any particular circumstance would be vested in the Commissioner of An Garda Síochána or somebody else. The Irish State would be one in which it was possible for the police, collectively or singly, to conceal records in their possession from the Executive of the day and the Minister responsible if it suited the police force. I am not willing to live with that regime under any circumstance.

If it is the case that Members of this House, particularly the Labour Party, can put out a statement without referring once to the role of the Secretary General of the Department of Justice, Equality and Law Reform, and that we must now address the issue of who has responsibility for and the power to procure documents in the possession of the police force, let me say unequivocally that for better or worse it must vest in the Government elected by the people.

One of the points Mr. Justice Morris made in his report is central to many of the issues we are dealing with. The Executive of the State must remain informed and be in a position to inform itself of every development in An Garda Síochána which it is appropriate for it to know. If we depart from that principle and vest in others the right to deny the Executive of the day, Members of the Oireachtas in committee or any other group of democratically elected politicians the right to know what the police have or have not in their possession in extremis a violence is done to a fundamental constitutional principle. It should not be permitted to happen or ever to be repeated.

I make these points not because I want to know what is in my political party colleagues' files, if such exist. It is because I want a senior public servant, the Secretary General of my Department, with his or her independent judgment to be able to decide whether I am to be left unaware or to be informed of the truth and the full facts of a Garda Síochána investigation or Garda activities when I stand up in this House.

Any departure from that principle is wrong. Other people deciding what a Minister could or could not know strikes at the heart of a Minister's accountability to this House. Ignorance and limited access to the truth puts the Minister of the day at a massive disadvantage with regard to accountability. When the issues that have arisen in recent times as to the adequacy and appropriateness of Garda management come into focus in this House, everybody on all sides of the House is entitled to know that the Minister of the day can responsibly and through a senior public servant require production of all papers so this House is not operating on a rationed and edited version of the truth.

That proposition is self-evident and should not be attacked or criticised. This House, through its Minister, is entitled to remain in democratic control of the exercise of police force powers in this State. Nobody should be in a position to deny this House accountability or the proper channel of accountability if a responsible non-political person has decided on the basis of all the facts available that there should be no such interruption of the flow of facts or information to this House.

We should have a three-person ombudsman commission. We should have a chairperson who is a visible head in charge of the administration of that commission. It is appropriate for that commission to be able to subdivide and delegate its work among its members. All of the arguments made for the "Nuala O'Loan model"— and I use the phrase with the utmost respect — are well met by the amendments tendered by the Government.

All of the advantages put forward by the Government for a multi-person commission are preserved by the amendments put forward by the Government. In those circumstances it should not be the case that this House, having participated in developing legislation should at this stage revert to a simplistic view that unless one person is doing the job it is not being done properly. That is equivalent to stating that one cannot have a multi-member Supreme Court, or three judges dealing with important cases in the Special Criminal Court or the Court of Criminal Appeal.

Having more than one mind operating on an issue has many advantages including transparency, stability, continuity and effectiveness. I make no apology to this House for standing by all of the advantages of a multi-member body. At the same time I concede the reasonable case put by others for having a visible, identifiable publicly accountable figurehead discharge the function rather than an anonymous body corporate. I have made the changes I believe are reasonable in the circumstances, and having made them I believe this House should accept them as a reasonable compromise for a sovereign State with a larger territory and a larger, more diverse police force to carry out this supervisory and complaints function rather than the arrangements that arise in Northern Ireland. If the Patten Commission had come up with a three-person body in Northern Ireland at the time and I had come up with a single——

The Patten Commission did not come up with that.

If it had done so——

Senator Maurice Hayes came up with it.

——and I had come up with the alternative view that one person would suffice, people would be banging the table here and saying that the Patten Commission's proposal was the only way forward and that a single person commission was some kind of lap-dog of the Minister that was obviously deficient, and all the reasons would have been given the other way.

Having listened to the debate and adapted these proposals to meet all the criticisms made, and having been true to the points I made in the debate, which is that there are advantages of a certain kind to a multi-person body, I find it difficult to take this simplistic, repetitive drumbeat that unless one person is doing this job, alone and unassisted, without any capacity to delegate or split his or her attention between different issues that might come before the commission, we are dealing with a second-rate ombudsman function. I find that simplistic, negative and wrong.

I say to Deputy Ó Snodaigh that I have listened very carefully to the debate. I have adapted the proposal. I have moved a huge way but I refuse to ignore all the good points made on the other side of the argument in an exhibition of conformity with Northern Ireland. The situation in Northern Ireland is different from that here. The requirements in Northern Ireland are different from those here. For instance, the police board in Northern Ireland, which is appointed partly by the Executive from among the great and the good and partly by the political parties on the d'Hondt principle, is not a model we would properly adopt in this jurisdiction, but that is a second day's work. There are different strokes for different folks and in Northern Ireland the name of the game is producing simple structures for cross-community support in a deeply polarised society. We do not have those problems here in the same measure. We have a different set of problems, but what we have is a sovereign Government responsible to a sovereign Parliament and a sovereign people for the policing function. In those circumstances, we should look not merely to what has happened in Northern Ireland but to what has happened in the United Kingdom and Canada in devising models for the execution of the ombudsman function. I am very confident that the compromise I have arrived at meets all legitimate arguments both ways and is the best outcome of a responsible political process, and I stand by it.

I acknowledge that the Minister has moved and that he listened but when he introduced the legislation he was not for moving. He was master, then all of a sudden he moved. Was he wrong in the first place in what he produced?

We are making a reasonable case which has the backing of a number of people, including the person he has appointed to oversee the implementation of the Bill, Senator Maurice Hayes. He examined models abroad and his preference is still a single ombudsman. I would like to be able to say the Minister is correct but it is obvious he intends to reject the amendments. I look forward to being proven wrong and that this ombudsman commission will do the work it is required to do.

We are not as distant from the situation in Northern Ireland as the Minister would believe because one of the major tasks facing us, considering the revelations in the Morris tribunal, is to build community support for the Garda Síochána, in Donegal at the very least but also throughout the country. Simple models work. People understand who is the person in charge. We made an argument about what would happen if somebody fell ill. What if Nuala O'Loan fell ill? What if the Taoiseach or somebody else fell ill?

We have the Tánaiste.

The Tánaiste is not the Taoiseach. Nuala O'Loan is the Ombudsman. People fall ill constantly and work continues. We can deal with that.

The reason we believe strongly in the model presented for a single ombudsman is that Nuala O'Loan's model has been proven to work whereas the Minister's model has not been shown to work. If he gave us examples of where a model in the same structure has been shown to work we will examine it. I hope I will be proven wrong and the Minister proven right because at the end of the day we need a proper complaints procedure but what we have had is a debacle. The Garda Complaints Board was one of the worst State bodies ever visited upon the people of this country.

The Minister, in his long-winded reply, particularly criticised the Labour Party for drawing attention to the fact that one of his amendments would provide for the Government to have the facilities to inspect every file the Garda Commissioner had under its jurisdiction without condition. Amendment No. 128b states: “... includes the duty to provide on request by the Secretary General, any document in the power or control of the Garda Síochána, including material in the form of Garda records, statements made by members of the Garda Síochána and by other persons and reports”. Therefore, any files or surveillance records could be requested through the Secretary General but it must be remembered that the Secretary General is just the messenger for the Minister. This is access on demand.

I have no doubt that what the Minister is trying to do is get away from the problem highlighted in the Dáil last night and again last Friday where he was unable to get possession of the Carty report for two years, from 2000 to 2002, and the Garda Commissioner, in conjunction with the Director of Public Prosecutions, for matters of privacy because there would have been proceedings in regard to the matter, determined to hold on to the report, or at least that is his version. The then Minister, Deputy O'Donoghue, said he had the report all the time. There is a dichotomy that we will have to try to square at some point in the future.

Under that amendment there is an unconditional entitlement for the Minister to have access to the files of any person in this country on request through his messenger, the Secretary General. That is not good enough. The Minister is taking the sledge-hammer approach to dealing with the matter, which will cause more problems. It should be remembered that a former Minister for Justice was bugging people and breaking the law in the process. Another former Minister for Justice has just been released from jail for serious transgressions.

The Deputy's two minutes are concluded.

Despite this, the Minister states without condition that any report, document or file or any material in any Garda record can now be requested by the Minister for Justice, Equality and Law Reform without any reason being given.

Amendment No. 128c is more measured. If it were put in place and amendment No. 128b were jettisoned, we would be talking business because there is a duty for which the reasons are specified and there are conditions and in-built safeguards.

The Deputy's time is up.

Amendment No. 128b is a notorious amendment that will give rise to enormous abuse. Although we will not get the opportunity to tease out the amendments properly, the Minister would do well to revisit amendment No. 128b.

The Deputy should conclude.

While there is no question about the Minister's bona fides, it leaves scope and opportunity for abuse in the future.

To describe the Secretary General of the Department of Justice, Equality and Law Reform as a messenger boy of the Minister is wholly to miss the point. If I wanted to give myself the powers the Labour Party claim I am giving, I would have given them to the Minister full stop.

That would look too obvious.

I would have nakedly done it. However, a Secretary General of a Department, particularly of the Department of Justice, Equality and Law Reform, who is the senior civil servant concerned with the security of the State, is not a messenger boy of the Minister. He is an Accounting Officer and departmental head and is not in a position to be directed by the Minister to exercise a solemn statutory duty, such as is given here, in bad faith on the Minister's account.

That is not the way it is presented in the amendment.

Let us be clear about this. No more than I could tell the Secretary General to write a cheque for this or that could I ask or direct him to exercise his functions under this proposed section in a manner which was in bad faith, because he has an independent role as an Accounting Officer under statute.

If one takes the view that the Secretary General of the Department of Justice, Equality and Law Reform would act in bad faith at the instigation of the Minister or the Government, one might as well say there is no point having a Committee of Public Accounts or a Comptroller and Auditor General because he should, in similar circumstances, as Accounting Officer, write a cheque for any proposal to satisfy me or my political aims.

The Minister is missing the point. It is a different issue.

A Minister in these circumstances, in the last analysis, if asked in the House whether there is a document in the possession of the Garda which states A or B, must be in a position by some mechanism, through a responsible office holder, to ascertain whether that is the truth. It would be a sad day if, as Minister, I were to tell the House I could not say a document of such a kind exists or does not, or, alternatively, that I was being refused by the Garda Commissioner information for which the Deputy asked and which I agree I should be in a position to impart to him. That cannot be right.

That is not the point.

If I had in this amendment vested those powers in a political person such as a Minister, I could well appreciate the Labour Party, with some degree of justification, issuing the press statement it did, and stating: "This man wants to be able to root through every file in the country." However, when the amendment tendered divests the Minister of that power and vests it in the Accounting Officer of his Department, there can be no question of there being any reality in the implicit bad faith situation being generated by way of objection to this on the part of the Labour Party.

I am only concerned with one point, namely, that succeeding Ministers or myself should be in a position, when asked a simple question in the House, such as whether gardaí received a report of this or that kind, whether they have a statement of confession from a man who did not commit a crime or whether they have written evidence of corruption, to give the House an answer the Minister knows to be true.

That is not what is in the amendment. That is the problem.

It would be a sad day if that were not the case.

Of course it would.

Nobody is arguing with the Minister that, in certain circumstances and with certain safeguards, he should be in a position to access the correct information. The problem is that these powers are being introduced by the Minister at the last minute without considering alternatives and safeguards with regard to how the Minister can achieve this. That, not the principle, is the problem with which we are faced. We agree there should be a process in a democratic system whereby the Minister has at hand, or can access, such information when he is asked a question in the House to be able to answer the question. Our point is that what is happening at present is not in compliance with normal democratic principles.

There is a difficulty when a major change like this is introduced at the last minute and when the Opposition is not given time to come up with safeguards that might be used as amendments to ensure this section is improved. Some Ministers abused their powers in the past and some have had tremendous influence over Secretaries General of their Departments. If other safeguards could be added, we could make some progress in this regard.

Nobody is arguing the basic principle with the Minister. However, if we had more time, more safeguards could be introduced. It is fine to talk about these matters when there is reasonably accountable, democratic Government and a public service we can trust. Five or six years ago we would have said the same about the Garda Síochána, namely, that we could trust it totally. Despite this, time and the Morris tribunal have shown this is not the case and that certain safeguards should have been put in place. We are now faced with a similar situation in this regard. Safeguards should be put in place to ensure the Minister does not abuse these powers.

I welcome the fact the Minister has embraced the concept of the ombudsman. I agree the Executive should be informed about what is happening within an Garda Síochána. However, the difficulty is that until now the Executive has not kept itself so informed.

The Minister referred to the North as a polarised society but there is also a polarised society here in that people have lost faith in the justice system. Victims of injustice want a voice. They are not happy with the system as it is or has been for many years. For many years, we were told there were no corrupt Irish police. The reality is that there were corrupt Irish cops throughout the world, whether in America, Canada or Australia. The line we were told was that we could not possibly have them in Ireland.

The events in Donegal shone a light on what one Garda division got up to. However, it is not the case that these were isolated incidents. If the Minister or the Executive believe the incidents were isolated, they have not been doing their job.

The Minister referred to simple solutions and spoke in terms of one individual rather than three. The argument against having one individual was that it was clear the public might have more faith in one individual who would have a certain amount of independence and power, whereas the power might to some extent be dissipated among three individuals. There is a difficulty in this regard. A situation arises at present whereby solicitors encourage victims who have been assaulted in police stations.

Debate adjourned.
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