Garda Síochána (Amendment) (No. 3) Bill 2014: Report Stage

I move amendment No. 1:

In page 3, between lines 14 and 15, to insert the following:

“Amendment of section 65(1) of Principal Act

2. Section 65(1) of the Principal Act is amended by the substitution of the following subsection for subsection (1):

“(1) The Ombudsman Commission is to consist of 1 member, who is to be appointed by the President on—

(a) the nomination of the Government, and

(b) the passage of resolutions by Dáil Éireann and Seanad Éireann recommending their appointment.”.”.

This amendment relates to the ambition of me and the Oireachtas Joint Committee on Justice, Defence and Equality to move from having a three-person Garda Síochána Ombudsman Commission with a chairperson to having a single Garda Ombudsman, as is the case in the North of Ireland, for example.

Members of the Oireachtas Joint Committee on Justice, Defence and Equality travelled to the North of Ireland and to Scotland to review their policing board models, Ombudsman models and criminal justice inspectorate models as part of our work leading to recommendations to the Minister for Justice and Equality. We found that the models in Scotland and the North had a single person responsible for police complaints and oversight, and the buck stopped with him or her. When it came to making a decision they made it - of course they relied on expertise. I see no reason for the Government not to support the amendment.

I am standing in for the Minister for Justice and Equality.

The effect of the amendment would be to replace the current three-member GSOC with a single person. The Minister appreciates this is one of a set of changes to the Garda Síochána Act 2005 that has been recommended by the Oireachtas Joint Committee on Justice, Defence and Equality. It was the view of the joint committee that having a single-person commission would provide for greater accountability and strengthen its overall position.

The Minister has considered the amendment carefully and, as was indicated on Committee Stage, there is, of course, more involved than merely a change to the number of commissioners. In particular the Minister is conscious of certain advantages from having a three-person body and she believes these must also be taken into account. In that context the underlying rationale for the three-person model was that it would facilitate bringing expertise and experience across a range of different sectors to the work of the commission.

In addition it was also considered to be a practical advantage that at least one commissioner would always be available to guide and direct operations. At operational level, GSOC considers this to be a significant advantage in a working environment as that faced by the commission. Indeed, some of its most serious and sensitive cases have occurred at weekends and during holiday periods.

Moreover, a three-person commission with its legally required gender balance and its range of experience and expertise conveys a strong public assurance that fairness and sensitivity are at the core of GSOC's approach at the highest level. It also helps that potential differences between an individual commissioner and key interlocutors do not impinge on the smooth and effective running of the organisation.

The Minister also accepts that up to recently the interaction between the Garda Síochána Ombudsman Commission and the Garda Síochána has not been functioning, if one likes, as effectively as it should. However, this is an area in which substantial work is being undertaken by both organisations. Furthermore - this is the purpose of the Bill we are debating today - additional powers are in the process of being conferred on GSOC.

In the circumstances the Minister would be reluctant to alter the current GSOC structures unless it could be shown that a significant advantage would accrue from doing so. Having considered the overall position, including that specific arrangements have been made for the commission, through a nominated member to account to Oireachtas committees, the Minister does not favour moving to a one-person commission.

However, conscious of the position of the joint committee on the matter, the Minister believes this is an aspect that needs to be kept under review. The Deputy will appreciate the consideration that has been given to his amendment. In the circumstances the Minister hopes that he can withdraw the amendment.

I certainly will not withdraw the amendment; I might even consider calling a vote given how strongly I feel about it.

We should think about the rationale the Minister of State has just provided. There are ombudsmen in different sectors. Ms Emily O'Reilly was very successful as Ombudsman and is now the European Ombudsman, based on the success of that model and her strong performance in the role. It was also a tribute to the Irish people and the success of our Ombudsman model and how well that worked.

The Minister of State made a point about what happens at weekends. There are senior staff who can deal with these matters, but in general the buck needs to stop with one Ombudsman. Let us consider other sectors. We have the Financial Services Ombudsman, the Ombudsman for the Defence Forces, and an Coimisinéir Teanga. It is one person every time and the buck stops with that person. I have not heard any argument justifying the need for three people to make a decision that should be made essentially by one person. The model internationally with police ombudsmen, sectoral ombudsmen or public service ombudsmen is for one person with senior advisers making the call.

The chairman of GSOC has recently resigned to take up a new position in Britain in order to be closer to his family and so on, and good luck to him. That vacancy gives us an opportunity to address the difficulties with the current structure.

I feel very strongly on this. The Government has not offered any justification for this not happening.

Notwithstanding the Minister of State's comment in reply to Deputy Mac Lochlainn, which sets out the position in retaining the status quo, given that there is a vacancy for a commissioner from the three-person commission, what process does the Government intend to pursue to fill that vacancy?

I support Deputy Mac Lochlainn's amendment. I do not suggest that anyone should get fired, but I feel there should be a head and the others should be called assistants. When Emily Logan operated as Children's Ombudsman and Emily O'Reilly as Ombudsman, they were seen as figureheads in their areas. It gave them a certain extra strength that they were more or less the boss.

The Minister of State rightly mentioned that there has not been a wonderful relationship between the Garda authority and the commissioners in GSOC. Having three commissioners rather than one head to deal with resulted in a lot of cat and mouse being played. As it turns out the senior ranks of the Garda did not seem to be answerable to any of the three of them.

We were never really sure, of the three of them, whether they were calling the shots evenly or whether one was in charge. As an outsider, I suspected that Mr. Simon O'Brien was the leading figure but perhaps I was wrong. I am concerned by the fact that his departure seems pretty sudden. He has been involved in cases that have not yet been resolved and we are concerned about it.

Given the way the reported bugging of GSOC offices was handled and the link to the Boylan affair, it is worrying. Deputy Clare Daly and I had a number of conversations with the GSOC commissioners and we were taken aback at their position when news broke in The Sunday Times article. All did not sit well. While Mr. Justice Cooke carried out a paper review of what went on, he did not carry out an investigation. Despite the former Minister's promise to publish the Rits report to see the difference between it and the Verrimus report, it is disappointing that the Government has not seen fit to publish it to allay suspicions that everything was not as we were told.

Returning to the arrangement of three commissioners, as opposed to one, it seems that the main reason three were selected was because GSOC replaced the Garda complaints board. A number of commissioners and senior figures were involved in the latter rather than one person. Three were appointed so as not to upset the apple cart at the time. I am backing Deputy Pádraig Mac Lochlainn on this point.

We are discussing the functionality of GSOC, which is a critically important issue. It is not just us or members of the public saying so, the United Nations Human Rights Committee also expressed concern at the functioning of GSOC and made the point that Ireland should proceed with strengthening the organisation. I view this amendment as a step in that direction.

Some excellent initiatives were taken under the auspices of the three current commissioners, although one has just left. The actions of these people have succeeded in bringing into the public domain the intransigent nature of the relationship with senior members of the Garda Síochána. It was forced into publishing its report on the Boylan affair and its annual reports highlight in no uncertain terms how senior members of the Garda Síochána were blocking the efforts of GSOC to do its job.

GSOC is a dysfunctional organisation and many of the people who work in it believe it was set up to fail. The way it was set up, one could not come to any other conclusion. The Minister's proposal does not address that. It will still be dysfunctional and toothless after this Bill is passed. A moved to a single commissioner would be a step in the right direction.

I am disappointed the Minister for Justice and Equality is not present in the Chamber. I am disappointed at her lack of interest in police reform. I was disappointed when I sought answers to parliamentary questions since Christmas in light of the resignation of the chairman, Mr. Simon O'Brien. I asked the Minister on two separate occasions whether she could reassure me that the reason for the retirement of the outgoing chairman, who was personally overseeing a number of sensitive cases involving Garda whistleblowers with serious allegations against senior management and cases that have major implications for senior members of the Garda Síochána, had nothing to do with these cases and that she had discussed the matter with him. The Minister has not answered these questions, which are relevant to this debate.

On a number of occasions, Deputies Mick Wallace and Pádraig Mac Lochlainn and I met the GSOC commissioners. We were the only committee members present the first time the commissioners appeared in Leinster House two years ago. The briefing to the Joint Committee on Public Service Oversight and Petitions was shocking in terms of the difficulties GSOC has had. GSOC is on record as saying the relationship improved subsequently but later we will deal with the fact that this is not the case. This is a good measure and I do not see any reason why the Minister would oppose it. I echo the point made by Deputy Mick Wallace that we are not dealing with the people in these positions losing their jobs. It involves a reconfiguration. If the Garda Commissioner has two deputy commissioners, I do not see why the GSOC Commissioner cannot have two deputies. If no one is the boss, it is difficult to get clarity.

With regard to the specific question from Deputy Niall Collins, we acknowledge that the vacancy has arisen for the chairperson of GSOC on foot of Mr. O'Brien's resignation. The appointment of members of the Ombudsman Commission is governed by section 65 of the Garda Síochána Act 2005. This stipulates that the commission consists of three members, all of whom are to be appointed by the President on the nomination of the Government following the passage of resolutions by both Houses of the Oireachtas recommending the appointments. The 2005 Act requires that the Government be satisfied that the persons nominated have the appropriate experience, qualifications, training and expertise for appointment, having regard to the functions of the commission. The Minister has indicated that the Government, in accordance with the 2005 Act, will consider the question of a nomination of chairperson of GSOC.

Will it be advertised?

I will revert to the Deputy.

Mr. O'Brien stated that his resignation was essentially for family reasons. With regard to the timing and advertisement, it is a matter for a Government decision so we will revert to Deputy Niall Collins on that point.

I note the points made by the Members opposite concerning one or three commissioners. The Government has set out its position on Deputy Pádraig Mac Lochlainn's amendment and is not prepared to change its position in light of the further submission made by the Deputy. The Minister stated that it is something she will keep under review in dealing with the amendment before us.

I want to express my disappointment. I admire the Minister of State but it is disappointing the Minister for Justice and Equality is not in the Chamber. I came in twice, on different days, while the Bill was being debated and the Minister was not present. I have made point during Leaders' Questions that the manner in which the Government is dealing with challenges at the legislative level since last summer leaves a lot to be desired. It is a case of kicking the can down the road and not tackling things and doing things as they should be done. This was a wonderful opportunity to put things right but, sadly, it is starting to look like the Government does not want to change much before the next election.

I recognise that this is not the fault of the Minister of State, Deputy Sean Sherlock, but it is disappointing that the Government is not taking proactive positions in a range of areas too numerous to mention.

A number of question marks hang over the Bill. If an independent policing authority is to be introduced some time this year, we will end up scrapping much of what is contained in this Bill. I do not understand why the Government decided against preparing one big Bill to deal with the independent Garda authority at the same time. That would have made much more sense.

Amendment put:
The Dáil divided: Tá, 44; Níl, 80.

  • Adams, Gerry.
  • Boyd Barrett, Richard.
  • Broughan, Thomas P.
  • Calleary, Dara.
  • Collins, Joan.
  • Collins, Niall.
  • Colreavy, Michael.
  • Coppinger, Ruth.
  • Cowen, Barry.
  • Daly, Clare.
  • Doherty, Pearse.
  • Dooley, Timmy.
  • Ferris, Martin.
  • Fitzmaurice, Michael.
  • Fleming, Sean.
  • Fleming, Tom.
  • Halligan, John.
  • Healy, Seamus.
  • Keaveney, Colm.
  • Kelleher, Billy.
  • Kirk, Seamus.
  • Kitt, Michael P..
  • Mac Lochlainn, Pádraig.
  • McDonald, Mary Lou.
  • McGrath, Finian.
  • McGrath, Mattie.
  • McGrath, Michael.
  • McGuinness, John.
  • McLellan, Sandra.
  • Mathews, Peter.
  • Murphy, Paul.
  • Ó Caoláin, Caoimhghín.
  • Ó Cuív, Éamon.
  • Ó Fearghaíl, Seán.
  • Ó Snodaigh, Aengus.
  • O'Brien, Jonathan.
  • O'Dea, Willie.
  • O'Sullivan, Maureen.
  • Pringle, Thomas.
  • Ross, Shane.
  • Shortall, Róisín.
  • Stanley, Brian.
  • Tóibín, Peadar.
  • Wallace, Mick.

Níl

  • Bannon, James.
  • Barry, Tom.
  • Breen, Pat.
  • Bruton, Richard.
  • Burton, Joan.
  • Buttimer, Jerry.
  • Byrne, Catherine.
  • Byrne, Eric.
  • Carey, Joe.
  • Coffey, Paudie.
  • Conaghan, Michael.
  • Conlan, Seán.
  • Connaughton, Paul J.
  • Conway, Ciara.
  • Coonan, Noel.
  • Corcoran Kennedy, Marcella.
  • Costello, Joe.
  • Creed, Michael.
  • Daly, Jim.
  • Deasy, John.
  • Deering, Pat.
  • Donohoe, Paschal.
  • Dowds, Robert.
  • Doyle, Andrew.
  • Durkan, Bernard J.
  • English, Damien.
  • Farrell, Alan.
  • Feighan, Frank.
  • Fitzgerald, Frances.
  • Fitzpatrick, Peter.
  • Flanagan, Charles.
  • Flanagan, Terence.
  • Gilmore, Eamon.
  • Griffin, Brendan.
  • Harrington, Noel.
  • Heydon, Martin.
  • Humphreys, Heather.
  • Humphreys, Kevin.
  • Keating, Derek.
  • Kehoe, Paul.
  • Kelly, Alan.
  • Kenny, Enda.
  • Kenny, Seán.
  • Kyne, Seán.
  • Lawlor, Anthony.
  • Lynch, Ciarán.
  • Lynch, Kathleen.
  • Lyons, John.
  • McCarthy, Michael.
  • McEntee, Helen.
  • McFadden, Gabrielle.
  • McGinley, Dinny.
  • McLoughlin, Tony.
  • McNamara, Michael.
  • Maloney, Eamonn.
  • Mitchell, Olivia.
  • Mitchell O'Connor, Mary.
  • Mulherin, Michelle.
  • Nash, Gerald.
  • Naughten, Denis.
  • Neville, Dan.
  • Nolan, Derek.
  • Noonan, Michael.
  • O'Donnell, Kieran.
  • O'Donovan, Patrick.
  • O'Dowd, Fergus.
  • O'Mahony, John.
  • O'Reilly, Joe.
  • Perry, John.
  • Phelan, Ann.
  • Phelan, John Paul.
  • Rabbitte, Pat.
  • Reilly, James.
  • Ring, Michael.
  • Shatter, Alan.
  • Sherlock, Sean.
  • Stagg, Emmet.
  • Stanton, David.
  • Tuffy, Joanna.
  • White, Alex.
Tellers: Tá, Deputies Pádraig Mac Lochlainn and Mick Wallace; Níl, Deputies Paul Kehoe and Emmet Stagg.
Amendment declared lost.

I move amendment No. 2:

In page 3, between lines 14 and 15, to insert the following:

"2. Section 67(2) of the Principal Act is amended by the insertion of the following paragraph after paragraph (h):

"(i) to hold the Garda Commissioner responsible, in his capacity as the Commissioner of An Garda Síochána but not in his capacity as head of national security, for the operations of An Garda Síochána.".".

We discussed this matter on Committee Stage in the committee rooms. I restate the reason we submitted this proposal. To strengthen and uphold the independence of GSOC in carrying out the oversight function with which it is charged under the legislation, it is very important that the holder of the office of Garda Commissioner is held accountable to the same degree as every other member of An Garda Síochána. There is no point in having the head of an organisation who is not accountable to GSOC subject to the input of the Minister of the day. The essence of the amendment is to hold the Commissioner to the same degree of scrutiny as every rank and file member of An Garda Síochána.

I thank the Minister of State, Deputy Sean Sherlock, for taking amendment No. 1. Acceptance of amendment No. 2 would mean the Garda Commissioner would become accountable to GSOC in respect of policing matters. This is the same recommendation that was made by the joint committee before I published the legislative proposals to establish a police authority. As the new legislation to establish a police authority will provide that such authority will supervise Garda policing, it is not proposed to accept the amendment.

While I can see the purpose of what Deputy Niall Collins suggests, I note that the core function of GSOC is to investigate complaints made against members of An Garda Síochána. As matters stand, GSOC cannot investigate a complaint made against the Garda Commissioner. Section 7 of the Bill changes that position by inserting a new section 102B into the Garda Síochána Act 2005 to bring the Commissioner under the remit of GSOC for the first time. I emphasise that this is for the first time. In addition, section 10 of the Bill amends section 106 of the 2005 Act to implement an important change that was also recommended by the joint committee. Section 106, as amended, will allow GSOC to examine for the first time on its own initiative any practice, policy or procedure of the Garda Síochána for the purposes of preventing any complaints arising in relation to those practices, policies or procedures.

The changes provided for in sections 7 and 10 are important and will enhance GSOC's capacity to carry out its functions.

As mentioned on Committee Stage, the effect of the Deputy's amendment is to include among GSOC's functions a requirement to hold the Garda Commissioner responsible, in her capacity as the Commissioner of the Garda Síochána but not in her capacity as head of national security, for the operations of the Garda Síochána. One of the consequences of the amendment would be to make the Commissioner responsible to GSOC for general policing matters even though such matters fall outside GSOC's functional remit. Deputies will be aware that I have published the general scheme of a Bill for the establishment of the proposed independent police authority which, among other things, will be charged with providing oversight of the Garda Síochána regarding policing services. This is the approach that should be adopted and the establishment of the authority is a major element of the Government programme for reform in the criminal justice area.

The Committee's recommendation came before I had published the legislation and moved to establish the Garda authority. The scheme has been the subject of scrutiny on the part of the Oireachtas joint committee and the Bill is being prepared as a matter of priority. I look forward to publishing the legislation, to which the Government is committed, and ensuring we have an effective police authority which will give greater transparency and an opportunity for greater community involvement. We have also said the hearings could be televised and it is expected that the policing authority would hold hearings around the country, not just in Dublin, on relevant policing issues in various parts of our community. The objective the Deputy seeks will be fulfilled by the police authority Bill and, given the very strong commitment I have given on it, I ask the Deputy to withdraw the amendment.

It is good to see the Minister here. She referred to a change to section 106 that would allow GSOC to examine policies, practices and procedures. Does it come under this section?

Section 10 of the Bill amends section 106. I was just referencing it.

The Minister referred to the police authority. Based on the heads of the Bill, there is a strong fear that it will not be as strong as it could be and Government and ministerial influence will remain very powerful. The policing authority is almost seen as a body advising the Minister, and this role is listed as one of its functions, which is concerning. It leaves the Minister with the power to veto all policy and strategy plans, which kills any notion of the authority's independence. We have previously expressed reservations about the manner in which the chairman was appointed. There was not much transparency about the process. It would have been a good start for the policy authority if the appointment of the chairman had been perceived to be much more independent that it appeared to us.

The idea of an independent police authority is to provide more democratic accountability and it should be a way for the citizens to hold the Garda to account in a more direct and democratic way. More representation in the body would be vital. The idea that the Government would be able to pull the strings of the police authority and have a strong influence over how it operates goes against the principle of what an independent police authority should be. We need an independent buffer between the Minister for Justice and Equality and the Garda Commissioner in order to avoid the sort of problems that arose last year when the former Minister, Deputy Shatter, was so closely tied to the Garda Commissioner that he could not abandon or criticise the Commissioner, no matter what he found. An independent police authority that was not being pulled around by the Government would provide a buffer and strengthen our policing in a dramatic way. It would be very important.

I gave the Deputy a bit of latitude there. We are talking about two different things.

We must have a new Ceann Comhairle.

Thank you, Ceann Comhairle. I am delighted you are in good form this week.

I am always in good form.

While we accept that the new independent Garda authority will provide a degree of oversight, it is a work in progress and we have yet to see how it rolls out. Members of the public who feel the Garda Commissioner of the day has wronged them want to be able to make complaints through the normal complaints mechanism. The flip-side is that for GSOC to be truly independent, so that it can carry out its remit, everybody in the organisation should be subject to its oversight. On this basis, we will press the amendment.

The Minister would be familiar with the Kieran Boylan affair. GSOC submitted a detailed report on the case and the significant lack of co-operation it received from the then Garda Commissioner on matters of the utmost seriousness. It submitted a 500-page report to the previous Minister and published a seven or eight page summary of its concerns. One of the key issues was the lack of co-operation from the Garda Commissioner. The episode demonstrated the need for clarity that, in order to be effective, the Garda Ombudsman needs full authority to fully investigate every member of the Garda Síochána, up to and including the Garda Commissioner. We must ensure the Bill allows the Garda Ombudsman to do this without the shadow of a doubt, leaving aside the security issues which we will deal with in a separate amendment.

The Government is committed to establishing a new police authority and to its being an independent body and having a strong oversight and supervisory role over the Garda Síochána. By any standard, it is a radical change in the accountability of the Garda Síochána.

Deputy Wallace referred to a buffer.

It is a new independent authority with strong powers to do its business in public as well as private in order that the public will see the Commissioner and other relevant members of the management of An Garda Síochána being invited to present the work they do and being subject to scrutiny by an independent body. The chairperson was appointed after I had asked the Public Appointments Service to advertise and several people put their names forward. The Government examined them and made a decision. Ms Josephine Feehily will be an excellent chairperson of the body, to which she brings the requisite skills of independence and analysis from her background in the public service to get the independent body off to a very good start.

There are constitutional issues in respect of the role of the Minister for Justice and Equality when it comes to policing. This role will have to be carefully crafted in the Bill which will have to meet constitutional standards. Allowing for this, the intention is to give the new independent policing authority the powers it will need to do its work effectively. There is no reason not to do this. We hope to have the Bill in the House by Easter. Work is ongoing on it.

The case mentioned by Deputy Pádraig Mac Lochlainn was referred to the Director of Public Prosecutions. As the Deputy knows, a decision was taken not to prosecute or take further action. That is all I can say on that point.

We have provided for strong new powers and brought the Garda Commissioner within the remit of the Garda Síochána Ombudsman Commission, GSOC, which we are allowing to examine, for the first time on its own initiative, practices, policies or procedures. I have met the commissioners on a couple of occasions, most recently in the past couple of weeks, and discussed the changes they want to see. In so far as practical, I will accommodate them to give them as many powers as they believe they need. During the course of the debate on the Garda Síochána (Amendment) Bill and the policing authority we can examine further changes if we think they are necessary.

Amendment put:
The Dáil divided: Tá, 44; Níl, 82.

  • Adams, Gerry.
  • Boyd Barrett, Richard.
  • Broughan, Thomas P.
  • Calleary, Dara.
  • Collins, Joan.
  • Collins, Niall.
  • Colreavy, Michael.
  • Coppinger, Ruth.
  • Cowen, Barry.
  • Creighton, Lucinda.
  • Crowe, Seán.
  • Daly, Clare.
  • Doherty, Pearse.
  • Dooley, Timmy.
  • Ellis, Dessie.
  • Ferris, Martin.
  • Fitzmaurice, Michael.
  • Fleming, Sean.
  • Fleming, Tom.
  • Healy, Seamus.
  • Keaveney, Colm.
  • Kelleher, Billy.
  • Kirk, Seamus.
  • Kitt, Michael P.
  • Mac Lochlainn, Pádraig.
  • McConalogue, Charlie.
  • McGrath, Finian.
  • McGrath, Mattie.
  • McGrath, Michael.
  • McGuinness, John.
  • McLellan, Sandra.
  • Mathews, Peter.
  • Murphy, Paul.
  • Ó Caoláin, Caoimhghín.
  • Ó Cuív, Éamon.
  • Ó Fearghaíl, Seán.
  • Ó Snodaigh, Aengus.
  • O'Brien, Jonathan.
  • Pringle, Thomas.
  • Ross, Shane.
  • Shortall, Róisín.
  • Stanley, Brian.
  • Tóibín, Peadar.
  • Wallace, Mick.

Níl

  • Bannon, James.
  • Barry, Tom.
  • Breen, Pat.
  • Bruton, Richard.
  • Burton, Joan.
  • Buttimer, Jerry.
  • Byrne, Catherine.
  • Byrne, Eric.
  • Carey, Joe.
  • Coffey, Paudie.
  • Collins, Áine.
  • Conaghan, Michael.
  • Conlan, Seán.
  • Connaughton, Paul J.
  • Conway, Ciara.
  • Coonan, Noel.
  • Corcoran Kennedy, Marcella.
  • Costello, Joe.
  • Coveney, Simon.
  • Creed, Michael.
  • Daly, Jim.
  • Deasy, John.
  • Deering, Pat.
  • Donohoe, Paschal.
  • Dowds, Robert.
  • Doyle, Andrew.
  • Durkan, Bernard J.
  • Farrell, Alan.
  • Feighan, Frank.
  • Fitzgerald, Frances.
  • Fitzpatrick, Peter.
  • Flanagan, Charles.
  • Gilmore, Eamon.
  • Griffin, Brendan.
  • Halligan, John.
  • Harrington, Noel.
  • Harris, Simon.
  • Heydon, Martin.
  • Humphreys, Heather.
  • Humphreys, Kevin.
  • Keating, Derek.
  • Kehoe, Paul.
  • Kelly, Alan.
  • Kenny, Seán.
  • Kyne, Seán.
  • Lawlor, Anthony.
  • Lynch, Kathleen.
  • Lyons, John.
  • McCarthy, Michael.
  • McEntee, Helen.
  • McFadden, Gabrielle.
  • McGinley, Dinny.
  • McLoughlin, Tony.
  • McNamara, Michael.
  • Maloney, Eamonn.
  • Mitchell, Olivia.
  • Mitchell O'Connor, Mary.
  • Mulherin, Michelle.
  • Murphy, Eoghan.
  • Nash, Gerald.
  • Naughten, Denis.
  • Neville, Dan.
  • Nolan, Derek.
  • Noonan, Michael.
  • O'Donnell, Kieran.
  • O'Donovan, Patrick.
  • O'Dowd, Fergus.
  • O'Mahony, John.
  • O'Reilly, Joe.
  • O'Sullivan, Maureen.
  • Perry, John.
  • Phelan, Ann.
  • Phelan, John Paul.
  • Rabbitte, Pat.
  • Reilly, James.
  • Ring, Michael.
  • Shatter, Alan.
  • Sherlock, Sean.
  • Stagg, Emmet.
  • Stanton, David.
  • Tuffy, Joanna.
  • White, Alex.
Tellers: Tá, Deputies Niall Collins and Pádraig Mac Lochlainn; Níl, Deputies Paul Kehoe and Emmet Stagg.
Amendment declared lost.

Amendments Nos. 3, 4 and 7 are cognate and will be discussed together.

I move amendment No. 3

In page 3, between lines 17 and 18, to insert the following:

“Amendment of section 73 of Principal Act

3. Section 73 of the Principal Act is amended by the insertion of the following subsection after subsection (3):

“(4) The Ombudsman Commission and the Garda Inspectorate may, for the purposes of an investigation, recruit a pool of independent investigators in place of designated officers.".".

The objective of this amendment is to ensure that there are independent investigators available to the Ombudsman. All too often the Ombudsman has allowed gardaí or former gardaí to carry out investigations. The wording of the amendment could perhaps be stronger.

We are trying to give the ombudsman, as well as the Garda Inspectorate, some flexibility in this regard. One issue that came up in the justice committee hearings was the public's concern that too often matters raised with GSOC are referred back for investigation to the Garda or to former gardaí who are working in the offices of GSOC. Perception alone creates a problem in this context. The point we want to get to is having as many complaints as possible investigated by independent people with the requisite skills. We are willing to work with the Minister on the wording of this amendment if there is a problem with it.

This amendment clearly attempts to get to the heart of who is allowed to carry out investigations against the backdrop of a scenario where GSOC is incredibly stretched and under-resourced. For example, I have a complaint with GSOC which is now two years old. It is hardly a rocket-science or complex case. It involves the criminal activity of gardaí leaking information to the media and some other incidents. It has been going on for two years, however. If it takes that long to investigate a case like that and tie up resources in that way, it gives an indication of the difficulty with which GSOC is working.

The Bill’s weakness is that it does not get to the heart of some of the difficulties that have emerged for the hundreds of citizens who have had the experience of going to GSOC. One of the most repeated complaints is precisely the fact that somebody goes to GSOC with a complaint about a garda and then other gardaí investigate that complaint. The Bill does not prohibit the involvement of serving gardaí in GSOC investigations or a referral by GSOC to the Garda to investigate a complaint. The Deputy’s amendment is trying to get around this.

I had a case this week of a peace activist in Galway who had put in a complaint to GSOC about an alleged assault carried out on him at a peace protest. GSOC investigators referred his complaint to a superintendent in Galway who himself had been at the receiving end of a similar allegation, namely that he had carried out an assault on peace activists previously. It was a ridiculous scenario with gardaí investigating an alleged crime for which they had also been investigated. Is it any wonder that citizens do not have confidence in GSOC?

When the citizen in question complained and kicked up - they had to kick up a fair bit - GSOC got another garda from the same station. At this point, the citizen said GSOC was not getting the message about gardaí investigating themselves. Unfortunately, the Bill as constituted still allows this to happen.

One key reason for this is the lack of resources for GSOC. It is understaffed while investigations take far too long because gardaí do not adhere to protocols or have been tardy in getting information to the commission. This is regrettable. It is good to have ex-gardaí and ex-police officers involved in GSOC because they know the score. However, there is a difficulty with that, particularly in a small country like Ireland where everybody knows everyone else. The Bill should contain a provision for a mandatory involvement of GSOC in investigations. No investigation should be left to the gardaí to investigate. If we need outside investigators to assist in this, then so be it. The other idea of the secondment of serving gardaí to GSOC to act in an investigative capacity raises similar concerns that need to be addressed.

I accept there could be difficulties with the nature of outside investigators and so on. Probably a better way would be to change the legislation to ensure no gardaí investigate complaints against themselves and that GSOC should be mandatorily involved in all investigations. I appreciate the intention of the Deputy’s amendment.

Given the number of complaints received over the past two years, and their nature, there is a serious level of dissatisfaction among the public with how GSOC deals with complaints. We were actually at pains to defend GSOC. On the occasions we met the commission, we found the three commissioners to be genuine and doing their best in very difficult circumstances. The idea that one third of complaints were going back to the Garda to be investigated without any supervision from GSOC is not ideal, however. One third of investigations were going back to the Garda but were being monitored while the other third were being investigated by GSOC, albeit with the help of ex-gardaí.

The number of former gardaí the commission had on its books ranged from two to four. At one stage in the House, I asked the former Minister for Justice and Equality if there were any serving gardaí in GSOC. He denied it adamantly at the time but later admitted outside of the House that he was wrong and there were serving gardaí in GSOC.

It is understandable the public finds it hard to wear the idea of the Garda investigating complaints against itself. In the one third of cases given to the Garda but not monitored by GSOC, the Garda can come back claiming there is no case to answer without an explanation. We have met many people who got that answer but the Garda was not obliged to give a reason for such a decision or what it found in its investigation. Of course, independent investigators will all cost money. However, if we want an oversight body functioning in a healthy manner, we will have to invest more in it.

To the best of my knowledge, the informal resolution mechanism provided for in section 90 of the Garda Síochána Act 2005 has not been amended either. The Garda can still veto this process. Has this been addressed or changed? The informal cases tend to be the less serious but tend to end up in the pot of the one third of investigations carried out by the Garda that GSOC does not monitor. That is an unsatisfactory arrangement for members of the public.

The intention of the Deputy’s amendment is that GSOC and the Garda Inspectorate should have the capacity to recruit independent investigators. This amendment in some ways is based on a misunderstanding. GSOC already can recruit independent investigators while the inspectorate does not investigate individual cases. I have had no request from the inspectorate to recruit independent officers, as its task centres on reports.

A different question, which several Deputies have raised, is the number of investigators, whether more could or should be recruited and whether the funding should be increased. Under the legislation, GSOC has the ability to recruit independently. Section 67(4) of the Act provides that GSOC is independent in the performance of its functions. It has recruited its own complement of independent and experienced investigators and the legislation sets down very clearly that the more serious cases have to be investigated by GSOC. That is the situation.

Under section 98 of the Act, designated officers have the same powers as members of the Garda Síochána. Once independent officers are recruited, they are very powerful in terms of the kind of investigations they can carry out under the law. They need expertise at a very high professional level given the seriousness of the cases and their complexity, from a forensic point of view or in terms of the seriousness of the offence. They need to be very highly qualified and GSOC has recruited people with a variety of skills to help it with its work. I remind the House that the three members of the commission are also vested with the powers of members of the Garda Síochána at or above the rank of inspector. That power is available to those who are recruited and to the commissioners.

In terms of the budget, with the support of the House at the time of the discussion around penalty points, we asked that GSOC would investigate that matter. It is carrying out an investigation and said it would need an extra €1 million. I allowed for that in the budget, so GSOC has the extra funds required to carry out the penalty points investigation, which was referred to the commission some time ago. People have been recruited for that investigation.

To go back to a point that Deputy Wallace made, there are two members of the Garda Síochána at superintendent level on secondment to GSOC. Section 74 of the Act provides that during a period of temporary service with GSOC, a member of the Garda Síochána is not subject to the direction or control of the Garda Commissioner. That is how it is framed under the legislation at present. Returning to the amendment and the request that the Garda Inspectorate should have independent designated officers, the inspectorate does not require investigators in the same way as GSOC. The Deputy is very familiar with this from committee discussions and the presentation on the work of the Garda Inspectorate. The way the Garda Inspectorate fulfils its role is by carrying out overall inspections of the operation and-or administration of the Garda Síochána. If it requires specialist expertise or extra administrative help, which it often does when carrying out these detailed investigations, it can hire the staff to do that. It is expected that people appointed by the inspectorate have experience in policing or other relevant matters. I think I have made it clear that what the Deputy is asking for in the amendment is already provided for. Perhaps the Deputy would reconsider the amendment.

I would like to take up a number of other points that have been made. Deputy Daly made a number of points about the timeframe. There were real problems with the timeframe between GSOC and the Garda Síochána. My information is that it has improved considerably and is operating much more satisfactorily than in the past. The delays were far too long in terms of getting information from the Garda back to GSOC. I have discussed this issue with both GSOC and the Garda Commissioner and have said there should be absolutely no discretion in this regard, except where there are particular difficulties. The information should be provided in a timely manner and I understand there is great improvement. I am sure GSOC would confirm that. Both the Garda Síochána and GSOC have a job to do. The public should be able to have confidence that a complaints body can do its job and the Garda should facilitate the investigation of those complaints. I have often said there is always going to be tension in the relationship between the two bodies - there probably should be - but I expect both of them to do their job effectively so the complaints can be investigated as they need to be.

On the issue of supervision of cases, GSOC does have the ability to supervise cases even if they are being investigated by members of the Garda Síochána. To expect a situation where every single complaint would be investigated by GSOC is not in line with international practice. I hesitate to use the words, because someone who is complaining considers that complaint to be serious, but we might say that there are, perhaps, some complaints that might fall into a lesser category. It is international practice that the organisation would have appropriate methods to investigate such complaints.

The point that was made on informal resolution is important. There is no change at present but if we could get agreement on it from the various bodies that have an interest, it would make quite a difference and would be an important area on which to achieve progress. I have had discussion on that area with GSOC and the Garda Commissioner and have asked them to give it consideration. I understand a number of initiatives are possible, which might not go the full way towards informal resolution but could begin to make a difference to how quickly the cases are dealt with. A huge amount of time is being taken up at present with cases I believe could be handled more informally and more effectively. That would free up both Garda and GSOC resources. The Garda Representative Association would make the point that it has to protect its members' reputations in disciplinary procedures, but I hope there would be scope for improvement in the way it is being done at present. I agree that it would be a positive move.

The question of feedback to the public has also been raised. I can only agree that, as in any area, complainants expect to receive good-quality feedback. That is an area that can be improved. It is clear from the contributions made by Deputies that there are developmental points. There are areas where GSOC needs to develop its service. I have already spoken about how the Garda Síochána needs to work more effectively with GSOC. Equally, there is work for GSOC to do in developing the kind of service the Deputies have discussed tonight as regards feedback to complainants as well as the Garda.

The safeguard and capacity which Deputy Mac Lochlainn is articulating in this amendment can be translated into real life by reference to what Deputies Daly and Wallace have said. If there are complaints in any sphere of public interaction with the establishment, whether it is banks, insurance companies, the Garda or whatever, the establishment is the status quo. It is very hard to get a hearing in a timely way and the blockages are enormous. That is really what Deputies Wallace and Daly are saying. I know myself from years ago, on what was a simple and straightforward, fact-based situation that was brought to the Insurance Ombudsman, the armour-plated wall of unreasonableness - the refusal to acknowledge the facts - was deafening. The ombudsman at the time agreed, informally and off the record, that while the small print of the establishment protected the establishment, reality and the facts were completely at odds with what was fair. In that case, it was the insurance industry that funded the Insurance Ombudsman and gave it its resources, so there was an automatic bias, and it was the bias that was unfair.

I know for a fact that at the moment the Financial Services Ombudsman is like a blocked drain because of the amount of cases that are waiting to be dealt with. There is a build-up of four, five and six-year delays. The smaller it gets, the bigger the delay. What do they say? Justice delayed is justice not done.

Rather than trying to get the words right in the legislative language that does not relate to reality, the word must go out that where there are complaints they are addressed within a specific timeframe. New blood should be brought in as a matter of course on every case, like a visiting doctor in the triage section of a hospital. It keeps everyone on their toes. We should simplify it and use ordinary language with fewer words and more action. I do not know whether I am making sense, but that is what is needed. We can talk on and on about it in the passive tense but it gets clouded when what we want is clarity.

There should be a to-do list from the Garda Síochána Ombudsman Commission to the effect that there will be so many people involved and they will deal with not less than so many cases. There should be a framework of executive action. We should arrange for the arrival of independent people from the United Kingdom, for example, who are used to investigating complaints and there should be one person per team. The Minister should spell it out rather than use this obtuse language. It is like trying to look through hammered glass to see what we are trying to achieve. The same applies everywhere in the business that this House tries to do. The Minister should keep it simple.

As I acknowledged earlier, there are errors in the drafting of this amendment. Of course, the Garda Inspectorate is not relevant to this debate. I will not be pressing the amendments because they are not worded properly. However, the objective of the amendments is to ensure that the issues Deputy Wallace and Deputy Daly have outlined do not continue. People are having to wait crazy periods for an outcome. A large percentage of cases are being referred back to An Garda Síochána or are being dealt with by gardaí seconded to GSOC. We need to get to a stage where only minor matters can be addressed within the office, for example, a case in which a garda did not get back to a person or some other minor complaints that could be dealt with easily. This was the view of the justice committee. However, anything of substance should not be investigated by a serving, seconded or former member of An Garda Síochána. There must be complete independence.

There should be a pool of independent investigators or options available. Clearly GSOC has not developed this enough because we can see backlogs in cases, even those which should be straightforward. Some are taking far too long. What is the outcome? Public confidence in GSOC simply does not exist. If a constituent comes to any Member, he or she would advise that constituent of the option to make a complaint to GSOC. However, the perception is there is no point because either it would be investigated by the garda involved or it would take too long. Unfortunately, that has become the reality. That is why this Bill is so important. We need a fresh start. We need to demonstrate to the public that the commission has teeth and resources, that it can get things done sharply and that it is genuinely independent in its role.

I am not going to press the amendments because they are not worded properly or as they should have been. However, I call on the Minister to take on board the intention of the amendments and to work with us. I figure we will have to come back again sometime soon to put in place another Garda Síochána (amendment) Bill and to arrange for further powers to be given to the Garda ombudsman. There will be several votes in the House tonight if we cannot get agreement. This is part of an ongoing discussion with the Minister. She may not agree with us tonight but I hope that over time and as we prove that things are not working properly we can revisit them. I will not press it but I call on the Minister to take on board and listen clearly to my intention. Then perhaps we could address it through further amendments. If this does not happen tonight or tomorrow then perhaps it will happen in the near future.

I wish to respond to some of the points in the discussion. Let us suppose someone goes to the Garda or GSOC with a complaint and that person has never had a previous interaction and the response is that the same Garda station decides to investigate the complaint. That is absolutely not on. Certainly we are not suggesting that the Garda could not be involved in these matters but the faulty issue is that in some cases the outsourcing of the complaint to the Garda without any GSOC oversight is unacceptable. There must be a role or some supervision in all cases.

The absence of an informal resolution process is regrettable because there are situations when, in normal circumstances, the person and gardaí in the station in question could get together and clear it up. That should be the way forward and it would be far better for everyone. The block is the fact that there is a crossover between possibly criminal or legal proceedings and disciplinary job-related problems for the gardaí involved. Reading between the lines of the Minister's comments it seems the Garda representative organisations are probably a block in this area. As far as I am concerned, they would provide a better service for their members if they were to engage in this process and seek an involvement. It is far better that the gardaí would meet citizens face-to-face to clear up any misunderstanding.

It is regrettable that the attitude of the Garda Representative Association and the Association of Garda Sergeants and Inspectors in the area of Garda reform is well out of sync with the interests of their members and citizens. It was shocking that when points were made in the House and Deputies tried to highlight some of these issues and get more accountability, the AGSI wrote a complaint and gave out to Deputy Wallace, for example, for highlighting some of the cases. The association was not so exercised when its members made complaints but were left high-and-dry after trying to improve the force.

Another aspect we need to address is the fact that GSOC has now replaced the confidential recipient. The commission is now the receiver of information from whistleblowing gardaí. How this area is dealt with should be investigated as well.

I thank the Minister for her reply. I am keen to pick up on some of the points. The Minister stated that under section 74 the commission is allowed to bring in senior members of the Garda. Let us make a comparison. Let us suppose I was working for a large company, for example, Google, and I took the view that I was unfairly dismissed and sought an investigation. I would not like it if two senior members of Google were on the investigation panel.

We dealt with this before when we were working on the Garda Síochána Bill. We have not tabled many amendments to this Bill. There are only five, whereas there were 74 in the Garda Síochána Bill. We would have had to print a book if we had gone back over all of it.

The Minister suggested that the normal international practice for minor cases is for the police to investigate themselves unsupervised. Sadly, I do not believe we have a normal situation. The Minister is aware of what has come back in all the various reports in recent years. It is a little scary. We do not have a normal set-up. That is why people do not like the idea of making a complaint if the complaint is likely to be investigated by gardaí without any oversight from GSOC and no feedback on why the matter has not been taken any further.

This relates back to my last point about the informal resolution mechanism. The Minister agrees that it would make sense in the context of a comparison of labour relations machinery, the Labour Court and so on. The idea of an informal resolution process makes sense all round. I do not see any rationality behind the idea of the Garda refusing to lift the veto in this regard. This is something the Government should be pushing.

The Minister made a point on feedback to the public and agrees we should get more feedback. However, we both know that we are not going to get that without more resources. We are not going to be able to provide a proper, strong oversight body on the cheap.

I have been listening to some of the other contributions on this. As the Minister will appreciate, to have an independent oversight agency, it is not good enough just to be independent. It must also be seen to be independent. The public perception must be that the organisation is truly independent and can act accordingly. To give an example, without mentioning any names, I was contacted recently by a girl in her late twenties, outside of Dublin, who was travelling to work on a night shift, along a motorway, and was stopped by the traffic corps. Her tax was out of date since November. The traffic corps pulled her in and went through the procedure, but seized the car from her, leaving her standing on the side of the motorway at nearly midnight for two hours before somebody eventually came to collect her. She came to see me to tell me about it, because, naturally, she was very upset. I explained to her that I could not do anything for her. I told her I assumed that the members of the traffic corps acted within the legislation that enables them and that if she had an issue, she could complain to the local chief superintendent or take the matter to GSOC. That was the level of the engagement I had with her. She went away very frustrated because, with all the public discourse we have been having about GSOC, her perception, rightly or wrongly, was that it was the guards investigating the guards. Unfortunately, that is what is in many people's minds at the moment. We must take every step possible to address that perception by strengthening the independence of GSOC with as many independent investigators as possible.

I will get some information for the Deputies who have been making contributions on the current timeframes, because it is important that this information is in the public arena. They have improved considerably in recent times. To reiterate, GSOC does have the ability to decide on how the cases are handled, depending on the type of case it is, the seriousness and the level of supervision. I do not believe - I do not think anyone in this House would believe - that if a complaint is made about a guard from a particular local station it should be investigated in that station. That situation should not arise and it is up to GSOC and An Garda Síochána, when they are handling these cases, that this should not be the case. It is clearly a conflict of interest situation and I would expect it to be dealt with differently.

We are talking about an organisation of 13,000 people, plus civilians and the reservists. In any organisation of that size, and I say this to Deputy Mathews and others who have contributed on this, it is reasonable to expect that an informal resolution mechanism would be available. If somebody goes into a Garda station and feels they are being dealt with disrespectfully at the front desk, there ought to be a way to deal with that within An Garda Síochána. That is just an example. If there are other circumstances connected with that behaviour, clearly it might have to be dealt with elsewhere. I am just making the point that every organisation of that size would have mechanisms within it to deal with complaints internally or supervised from outside. Not every complaint in an organisation of maybe 14,000 or 15,000 members will be investigated by an outside body. One can imagine the level of resources required. All the Deputies are talking about resources. We must be realistic about an appropriate structure that deals in the right way with the serious cases, that refers them to GSOC, which has the right investigators to deal with them, which it does, and that provides informal resolutions for cases at the other end of the spectrum. We have given extra resources to it this year to carry out the work and as the work of GSOC expands, resources will be an ongoing issue, which the Government will continue to address. There is no question about that. In the meantime, a number of changes can be made.

In terms of this amendment, and I appreciate that Deputy Mac Lochlainn is not pressing it, I take the point that is being made. GSOC does have the ability to recruit independently. Obviously, the number of people who are recruited is dependent on the resources it has and it is in a position to recruit at present for the penalty points.

How stands the amendment?

Amendment, by leave, withdrawn.
Amendment No. 4 not moved.

Amendments Nos. 5 and 9 to 11, inclusive, are related and will be discussed together by agreement.

I move amendment No. 5:

In page 3, between lines 20 and 21, to insert the following:

“Amendment of section 82(1) of Principal Act

4. Section 82(1) of the Principal Act is amended by the substitution of the following subsection for subsection (1):

“(1) In this Part, unless the context otherwise requires—

‘admissible complaint’ means a complaint determined by the Ombudsman Commission under section 87 to be admissible;

‘breach of discipline’ means conduct specified in Schedule 5;

‘complainant’ means—

(a) a person who makes a complaint,

(b) a person on whose behalf a complaint is made, and

(c) where a complaint is made on behalf of another by a person authorised to do so under section 83, the authorised person;

‘conduct’ includes any act or omission and a reference to the occurrence of any conduct includes the doing of an act or the making of an omission;

‘disciplinary proceeding’ means a proceeding conducted in accordance with the Disciplinary Regulations;

‘Garda Commissioner’ includes a Deputy Garda Commissioner or an Assistant Garda Commissioner acting in place of the Garda Commissioner under section 32;

‘Independent Adjudicator’ means a member of the judiciary chosen to adjudicate on disputes between the Ombudsman Commission and the Garda Inspectorate;

‘member of the Garda Síochána’ does not include the Garda Commissioner;

‘member of the public’ means a person other than a member of the Garda Síochána or the Garda Commissioner;

‘misbehaviour’ means conduct that constitutes an offence or a breach of discipline;

‘serious harm’ means injury that—

(a) creates a substantial risk of death,

(b) causes serious disfigurement, or

(c) causes substantial loss or impairment of mobility of the body as a whole or of the function of any particular bodily member or organ.”.”.

In terms of the definitions, the second paragraph from the bottom should read "'Independent Adjudicator’ means a member of the judiciary chosen to adjudicate on disputes between the Ombudsman Commission, the Garda Inspectorate and An Garda Síochána." It is obviously about disputes between those bodies.

It is a drafting error. The other two amendments are much clearer on that point. The Minister will recall the events organised by the Human Rights and Equality Commission and the Law Society. Conor Brady was one of the speakers, a former Garda Commissioner - sorry, Garda Ombudsman Commissioner. He made the point that, where ever-----

They should make him one.

He made the point that if information or documents requested by the Garda Ombudsman, or indeed other bodies, were withheld on security grounds, there should be an independent adjudication system, for example, as I have defined here, a High Court judge or person of that calibre. It is important because there will be grey areas. There will be matters of importance where the Garda Síochána may believe on security grounds that something should not be submitted, information should not be given or an investigation should not take place, but when the situation is examined, that is not the case. It is important that it is not just the Minister who makes that call. I like to think she would welcome that responsibility being taken off her. This goes back to the point Deputy Wallace made earlier, which I totally agree with, namely, that one of the big problems we had in recent times was that the former Minister, Deputy Alan Shatter, had a sort of umbilical relationship with a former Garda Commissioner, Martin Callinan, which was very unhealthy and led to a lack of independence from the Minister and a lack of due diligence around the issues that were coming to him one by one. That kind of relationship must end. If we allow a situation where these security matters are deliberated only by the Minister, we go back to that type of scenario. If there is an independent adjudicator who has a role designated by the State - I am suggesting here that this would be a member of the Judiciary, a High Court or Supreme Court judge, whatever the Government would deem appropriate - that body decides what is sensitive for security reasons and cannot be given, and what is not. That is the purpose of these amendments. It is vital. I was trying to figure this out myself, but when Conor Brady said it - obviously he is a respected person, a former Garda Ombudsman Commissioner - I took it down and thought it was a solution to the conundrum we may have.

In the area of admissibility, the time factor, which will be the subject of subsequent amendments, is clearly a major issue. The slight change proposed in this area is not sufficient. In serious cases where criminal matters may be at stake, the period of admissibility should be extended to two years.

Members of the public do not have sufficient confidence to confront the Garda Síochána, even through the Garda Síochána Ombudsman Commission. It takes courage to make a complaint about a garda and many people do not know what gardaí may and may not do in their interactions with the public. Much greater clarity is needed in this area.

It is frightening to note the large number of people who, having shown the courage to take a case to GSOC, find that their case is not admissible for various reasons, of which the time factor is the principal one. People who experience a problem with the Garda often expect the issue to be resolved and believe they will get justice. When it transpires that no progress has been made in resolving their problem they subsequently decide to complain to someone in authority and they often find that their complaint is not admissible because of the time that has elapsed. The period within which a complaint must be made should be extended from six to 12 months. I am not sure one year is even sufficient given the difficulty people experience in getting organised and mustering the courage to take a stand. Increasing public confidence in the system will require the Minister to make it less difficult for members of the public to approach GSOC and make it easier to have a case ruled admissible.

These amendments raise an extremely important issue in terms of the areas in which difficulties emerge in the interaction between the Garda Síochána Ombudsman Commission and the Garda Síochána. This was a key issue when the previous Garda Commissioner and Minister for Justice and Equality were in office. The perception at that time, which I believe reflected reality, was that in the case of a conflict between GSOC and senior Garda management, namely, the Commissioner, the Minister would side with the Garda Síochána to the detriment of the Garda Síochána Ombudsman Commission. This view was vindicated when, unfortunately, the organisations representing gardaí issued public statements, allegedly at the behest of the former Garda Commissioner, in which they expressed a lack of confidence in GSOC and urged their members not to co-operate with it. Such behaviour is completely unacceptable in a scenario in which one is dealing, in effect, with what used to be the Garda Complaints Board or any other mechanism aimed at creating public accountability in respect of the Garda.

Someone somewhere must step in and compel Garda co-operation, for example, in the handing over of documents. A cursory glance at GSOC's annual reports for the past two years, especially for 2013, shows there were inordinate delays in handing over documentation. No valid reasons were given for these delays and Garda stations issued ridiculous statements to GSOC questioning its decision to seek certain information or arguing that the commission was not entitled to access certain information. This was clearly not the case as there was an obligation on the Garda to provide the information sought by GSOC. Given such blatant disregard for procedure, someone somewhere must intervene. A process of independent adjudication is important.

The boundaries in respect of admissibility must be extended, as provided for in amendment No. 5. We must also extend the scope of admissible complaints to encompass a greater number of people. The exclusion of retired gardaí from the scope of GSOC investigations is regrettable and I understand there are no plans to change the position in this regard. In a number of cases where the noose was tightening, so to speak, or the wolf was at the door, the gardaí who were the subject of the complaints were asked to step aside or told they would be better off retiring as retired gardaí can escape sanction. This is a serious problem.

When we speak of the interaction of GSOC and the Garda Síochána in the period in which complaints are being processed, we must also consider what is taking place outside the process. I will refer to a case that has been raised on numerous occasions in the House, namely, the tragic death of Shane O'Farrell. Shane's mother, Lucia O'Farrell, has been championing her son's case because the man who killed him in a driving incident had obtained car insurance by fraudulent means and had a large number of convictions which were not revealed to the court. GSOC is investigating 59 admissible complaints related to this case in the public interest under section 102. Despite this, one of the senior gardaí involved in handling the case was promoted. The family is asking how it is possible that, on the one hand, 59 admissible complaints of a criminal character are being investigated while, on the other, someone who was involved in the process has been promoted. This interface is a source of great stress for the citizens involved and must be addressed. Moreover, it does not do the Garda any good.

An independent adjudication mechanism is needed and it must have teeth, in particular, with regard to the handing over of documents. Sometimes when a complaint is made against a garda, he or she will get lawyered up, as it were, and a confrontational scenario ensues. A mechanism must be introduced to untangle this to the best extent possible. The amendments are well made and valid.

The impact of the amendments would be to remove from the Minister for Justice and Equality the function under section 96 of the Garda Síochána Act of determining whether certain information or material could be made available to the Garda Síochána Ombudsman Commission where it has been claimed that matters of national security are involved. Having considered the amendments, I am of the view that, given that the security of the State is a priority function of government, the task of deciding whether information or material can be withheld on security grounds should remain with the Minister in his or her capacity as a member of the Government. Protecting the security of the State is an important obligation on the Government. As such, the proposal to transfer responsibility for decisions on matters that impact on the security of the State to an entity other than the Government is not the right direction in which to go.

It is incumbent on a Minister for Justice and Equality to ensure the relevant functions under section 96 are discharged properly and impartially. As Deputies will be aware, there are a number of areas where important security related matters are dealt with by the Minister, including authorising the interception of communications. These are serious and important functions. It is appropriate that decisions involving the security of the State should remain with a Minister.

I note Deputy Mac Lochlainn foresees in amendment No. 5 a specific role for a member of the Judiciary. Section 100 of the Garda Síochána Act provides for the appointment of a designated High Court judge to keep under review the operation of certain provisions of the Act, including section 96, which relate to the security of the State.

I believe those arrangements are prudent; they are in place and they are working. A judge is designated to that position, prepares a report on an ongoing basis and can make a report to the Taoiseach if any concerns arise. I have no doubt a judge in such a position would do just that because that is their job. If there is anything they see in the work that is being done that they feel needs to be changed, or if they have concerns, they are given that obligation and that job to do.

Section 100 provides for judicial oversight of certain provisions of the Act that relate to the security of the State. To explain this the Members of the House, it requires the President of the High Court, after consulting with the Minister, to invite a judge of the court to agree. I should say in that regard that once the President of the High Court would nominate a judge, that would obviously be accepted by the Government and there would be no question expressing a preference for another judge. The President of the High Court would make the nomination and I have no doubt the practice is to accept it. As I said, it is to keep under review the areas I have mentioned but also to report to the Taoiseach from time to time concerning any matters relating to the operation of those sections or regulations that the judge considers should be reported.

That oversight is contained in section 100 of the Act. I do not believe it is appropriate to hand over to anyone else decision-making around security material in the context of this legislation. I ask Deputies to consider whether one would actually want to say that a Minister of the Government would not have this responsibility in regard to security matters.

Whenever we met the ombudsman in the North as part of the Oireachtas justice committee's preparation for putting recommendations and proposals to the Minister, one of the things that became apparent is that the ombudsman in the North has the same powers as the police in terms of the Official Secrets Act and so on. In other words, it has unrestricted access. It smacks as being very arrogant that the only people who can protect the security of State are the Government of the day or the senior members of An Garda Síochána. Where we want to get to is to give the oversight body the capacity to do its job, unless there is some sensitive issue involved.

My concern is that not too many people in Ireland had confidence in the former Minister, Deputy Alan Shatter, in terms of his independence, when he left office. They saw that he was joined at the hip to the Garda. He has been found again and again, be it by the Comptroller and Auditor General or the Garda Inspectorate, not to have been on top of his job in terms of looking at failings within the Garda. Indeed, the review by the independent panel of the Department of Justice and Equality also found that the Department was failing in its responsibility to hold the Garda to account. The problem historically, be it with the Minister or the Department of Justice and Equality, is that they have been too close to An Garda Síochána and their independence in these matters - the Minister talked earlier about perception - is perceived as not being too strong.

I am sure there are examples in other jurisdictions. I cannot see the difficulty in allowing a very senior judge, perhaps up to Supreme Court level - an esteemed person, learned in the law - to adjudicate on these matters. This would assure the public that they have looked at the matter and they believe An Garda Síochána is entitled to withhold on security grounds. This would also serve to define clearly what are security grounds. We need to be clear what is national security because it could be an extremely loose term or be understood very loosely.

I believe the Minister is giving herself far too much power, with all due respect, considering the track record of what came before her and the history of the Department in recent times. She should not take my word for it, given the range of independent analysis. I believe it is a foolish decision. If the Minister persists in not accepting the amendment, I will call a vote.

The area of national security is a complex one for us and it is complicated by how we do things. It is not the norm that the one authority looks after policing and State security, which we have here. It might be argued that given the size of the country it should be so. However, while it will not happen overnight, the idea of a separate authority looking after policing and State security makes sense in the long term. Clearly, there has been a tendency for Governments to hide behind national security.

An extra challenge is that our police force is not susceptible to freedom of information. If we compare Ireland to the rest of Europe and most Western countries, we have some of the weakest access to information about how our police force works. To take our neighbours in England as an example, things are more transparent there. We have been looking at cases where investigations of gardaí went to the DPP but we do not know what happened since then because the office of the DPP acts as a secret society. The English equivalent prints on its website the result of its investigations into police officers, as we know because we checked this up today and found reports published on the Internet. We do not do things in a very transparent and accountable way here, which is part of our problem. If we had access to more information, and if the Garda was susceptible to freedom of information, many of our worries would not be as strong as they are.

From the time we started looking into the problems with policing in Ireland, the problem of this area being over-politicised has run through every vein. I made the point on Leaders' Questions last week that in Conor Brady's book, which deals with the period from the early 1950s to the present, the common theme running through it is that one of the reasons we still have problems with how we do policing is that we have refused to de-politicise it.

I believe change is underway and there are many signs of change in regard to what the Deputy calls de-politicisation, whether in regard to the issue of the independent people who are now involved in the promotions issue, for example, the setting up of the Garda authority and the many other changes that are underway.

I would make the point that we are dealing here with how to strengthen GSOC but there is a particular lens that people have on the Garda Síochána. Clearly, legitimate criticism and discussion, and highlighting the areas that need to improve, are very important. However, I would make the point to Deputy Mac Lochlainn, who made a number of comments in regard to the security of the State, that it is not so long ago that the Garda was clearly in the front line in defending the peace and security on this island, and played a very strong role in that regard which we should not forget. Neither should we forget the role the Department of Justice and Equality played in regard to preserving the peace and security on this island when it was threatened by various forces over a long period.

It is very important that we bring that lens to bear as well and not cast the entire membership of An Garda Síochána as a body which does not give professional service. Clearly, there are many members of An Garda Síochána who give professional service. There are many members who work very closely in regard to protecting communities, detecting crime and securing the peace, which is ongoing work.

Let us not forget that An Garda Síochána is working on the problem of those subversives who still threaten peace in this country. It is also involved in the fight against international terrorism and cyber crime and is working on the issue of sophisticated criminal gangs and trying to solve murders and do all of its other work. It is important to keep that perspective in mind as we discuss these issues here.

I cannot accept the amendment, not because of an arrogant approach to this, but because I believe it is the obligation and responsibility of the Government to have responsibility for the security of the State.

Is the Deputy pressing the amendment.

Amendment put:
The Dáil divided: Tá, 39; Níl, 74.

  • Adams, Gerry.
  • Broughan, Thomas P.
  • Calleary, Dara.
  • Collins, Joan.
  • Collins, Niall.
  • Colreavy, Michael.
  • Cowen, Barry.
  • Crowe, Seán.
  • Daly, Clare.
  • Doherty, Pearse.
  • Ellis, Dessie.
  • Ferris, Martin.
  • Fitzmaurice, Michael.
  • Flanagan, Terence.
  • Fleming, Sean.
  • Fleming, Tom.
  • Halligan, John.
  • Healy, Seamus.
  • Kelleher, Billy.
  • Kirk, Seamus.
  • Mac Lochlainn, Pádraig.
  • McConalogue, Charlie.
  • McGrath, Finian.
  • McGrath, Mattie.
  • McGrath, Michael.
  • McGuinness, John.
  • McLellan, Sandra.
  • Mathews, Peter.
  • Murphy, Catherine.
  • Naughten, Denis.
  • Ó Caoláin, Caoimhghín.
  • Ó Fearghaíl, Seán.
  • O'Brien, Jonathan.
  • O'Sullivan, Maureen.
  • Pringle, Thomas.
  • Ross, Shane.
  • Stanley, Brian.
  • Tóibín, Peadar.
  • Wallace, Mick.

Níl

  • Barry, Tom.
  • Breen, Pat.
  • Bruton, Richard.
  • Burton, Joan.
  • Butler, Ray.
  • Buttimer, Jerry.
  • Byrne, Catherine.
  • Byrne, Eric.
  • Carey, Joe.
  • Coffey, Paudie.
  • Collins, Áine.
  • Conaghan, Michael.
  • Conlan, Seán.
  • Connaughton, Paul J.
  • Conway, Ciara.
  • Coonan, Noel.
  • Corcoran Kennedy, Marcella.
  • Costello, Joe.
  • Coveney, Simon.
  • Creed, Michael.
  • Daly, Jim.
  • Deasy, John.
  • Deering, Pat.
  • Donohoe, Paschal.
  • Dowds, Robert.
  • Doyle, Andrew.
  • Durkan, Bernard J.
  • Farrell, Alan.
  • Feighan, Frank.
  • Fitzgerald, Frances.
  • Fitzpatrick, Peter.
  • Gilmore, Eamon.
  • Griffin, Brendan.
  • Harrington, Noel.
  • Harris, Simon.
  • Heydon, Martin.
  • Humphreys, Heather.
  • Keating, Derek.
  • Kenny, Seán.
  • Kyne, Seán.
  • Lawlor, Anthony.
  • Lynch, Ciarán.
  • Lynch, Kathleen.
  • Lyons, John.
  • McCarthy, Michael.
  • McEntee, Helen.
  • McFadden, Gabrielle.
  • McGinley, Dinny.
  • McLoughlin, Tony.
  • McNamara, Michael.
  • Maloney, Eamonn.
  • Mitchell, Olivia.
  • Mitchell O'Connor, Mary.
  • Mulherin, Michelle.
  • Neville, Dan.
  • Nolan, Derek.
  • Noonan, Michael.
  • Ó Ríordáin, Aodhán.
  • O'Donnell, Kieran.
  • O'Donovan, Patrick.
  • O'Dowd, Fergus.
  • O'Mahony, John.
  • O'Reilly, Joe.
  • O'Sullivan, Jan.
  • Perry, John.
  • Phelan, Ann.
  • Phelan, John Paul.
  • Rabbitte, Pat.
  • Ring, Michael.
  • Sherlock, Sean.
  • Stagg, Emmet.
  • Stanton, David.
  • Tuffy, Joanna.
  • White, Alex.
Tellers: Tá, Deputies Pádraig Mac Lochlainn and Mick Wallace; Níl, Deputies Joe Carey and Emmet Stagg.
Amendment declared lost.
Debate adjourned.