Garda Síochána (Policing Authority and Miscellaneous Provisions) Bill 2015: Report Stage

Amendments Nos. 1 and 2 are related and may be discussed together.

I move amendment No. 1:

In page 6, line 24, after “preventing” to insert “where there is reasonable suspicion”.

We like meeting the Minister of State and we get on fine with him, but he must forgive us for feeling a bit aggrieved that we see very little of the Minister for Justice and Equality on these occasions. I would hazard a guess that if it were the former Minister, Deputy Shatter, he would get out of his sickbed to be here. It is not that he would not trust anyone else to do it but that he was so much on top of his game. I did not agree with everything he did and he was not on top of his game in certain areas, but he had a very different approach. Given that the Government has advertised this almost as a flagship Bill in the area of policing, although we do not agree with that, it is surprising the Minister is not here herself.

We submitted many amendments but we were pretty shocked at about 12 p.m. today to see that 37 of our amendments were ruled out of order on the basis that they were not discussed on Committee Stage. We went to the committee initially but the proceedings were not completed on the first day. They were postponed to another time, which was fixed for 12.30 p.m. on a Tuesday. Neither I, Deputy Clare Daly, Deputy Mac Lochlainn, Sinn Féin's justice spokesperson, nor the Fianna Fáil justice spokesperson were available to attend, but they insisted on the meeting going ahead anyway. We had a Technical Group meeting which we had to attend to get speaking time for the week. On that basis, our 37 amendments have been ruled out of order. I find this very undemocratic. If we are to be treated in this way, we will avail of any rules and regulations we can use to enhance our democratic rights on this end.

The amendment in question relates to section 4 on the security services. In section 3A(1)(a)(i), as inserted by section 4 of the Bill, regarding "preventing, detecting and investigating offences under the Offences against the State Acts 1939 to 1998", we are looking to insert "where there is reasonable suspicion" after "preventing". There are huge issues around State security. To look at where we are even before this Bill is enacted, in the current law there is no definition of "State security" in the Garda Síochána Act 2005 because there was not the same need for the distinction since the Garda and the Minister were responsible for both policing and State security. There is a reference to State security in section 99 of the 2005 Act which restricts GSOC, when investigating a possible offence, from searching any Garda station designated under section 126 and allows the Garda Commissioner to object to any investigation of Garda stations on State security grounds. The Minister is the final arbiter if there is disagreement between GSOC and the Commissioner in this regard. There is also a procedure set out in section 100 where a designated High Court judge may refuse the operation of section 99 and any regulations issued under sections 96 and 126, which allow a Garda requested by GSOC to provide a document in connection with a GSOC investigation to refuse to do so on grounds of State security. The matter is then referred to the Minister for her direction.

In the new Bill there is a very broad and vague definition of State security, with the Minister self-appointed as the final arbiter. The new Bill also permits the Minister, arguably unconstitutionally, to decide what is or is not lawful. It states:

3A. (1) In this Act ‘security services’, subject to subsection (2), means the functions of the Garda Síochána referred to in section 7 that are concerned with—

(a) protecting the security of the State including, but not limited to, the following:

(i) preventing, detecting and investigating offences under the Offences against the State Acts 1939 to 1998, the Criminal Law Act 1976, the Criminal Justice (Terrorist Offences) Act 2005 and the Criminal Justice (Money Laundering and Terrorist Financing) Act 2010;

(ii) protecting the State from—

(I) espionage,

(II) sabotage,

(III) unlawful acts that subvert or undermine, or are intended to subvert or undermine, parliamentary democracy or the institutions of the State.

I point out that "intend" is a very broad term. These provisions, it is stated, do "not include lawful advocacy, protest or dissent". Who decides if it is lawful? It appears that either the Garda or the Minister in this instance are setting themselves up as judge and jury as to whether something is lawful. Who decides if something is intended to subvert parliamentary democracy? The goings on at Shell to Sea, where the local community strongly protested against the actions of Shell and what it was doing to the local environment and the manner in which it went about it, were handled very roughly by the Garda Síochána. Much has been said about this over the years. It beggars belief that, despite a great deal of international condemnation, we have never seen a proper independent State investigation into what went on there. The State could easily argue that it was in the interest of State security that they handled it as they did. That is very worrying from my perspective.

It is not an ideal position for State security and policing to be under the control of one body. I realise that changing it is a significant challenge, but if one looks around the world, it is a rare position. Some Government - obviously, it will not happen with this Government - will eventually take on the challenge of dividing up State security and policing. I would be convinced that we will get a more accountable policy operation when we separate them. Sadly, too often gardaí have hidden behind the notion of State security. They state they cannot give one something and when asked why, their response is that it is in the interest of State security. It is interesting that Mr. Conor Brady, a former GSOC commissioner, has highlighted that GSOC has struggled alarmingly to deal with many complaints about An Garda Síochána because of its use of State security. I realise we will not get that now but we should, at least when we are discussing this Bill, provide for a little more transparency in how things are done.

When there is an argument about whether something should be deemed part of State security, the Minister should not be setting herself up as judge and jury over the matter. There should be an independent arbiter of some sort, preferably a High Court judge. In parts of this Bill, Deputy Clare Daly and I have introduced the idea of an ombudsman commission. We have introduced the idea of GSOC playing a role, in line with a High Court judge, to decide where there is a dispute as to whether a matter is rightfully being considered one of State security. The idea of leaving it in the hands of the Minister of the day is not the way to handle it.

As the Minister of State, Deputy Dara Murphy, will probably be aware, many of our complaints about how policing is conducted are strongly linked to the fact that policing is excessively politicised in Ireland. The Government has too much control over the running of the police service and it has led to many problems.

When we introduced our policing Bill, both two years ago and a year and a half ago, we were strongly in favour of the idea of a police authority but we had a very different idea of a police authority than what we are getting now. One of the strong elements running right through our police authority was taking the hands of the Government of the day off policing. It was also designed to be much more accountable to the people. It was designed to lead to much greater policing by consent rather than from on high.

It is a long Bill, there is a lot to talk about and I will not go on too long on amendment No. 1. Likewise, on the second amendment, as we are discussing both of them together, in section 3A(1)(a)(ii)(III), under security services, we seek to delete "unlawful acts" and substitute "acts which have been found by a Court to be unlawful, and which". I have dealt with this issue. There should be court involvement in deciding what is unlawful and what is not. When is a protest lawful and when is it not is a decision for the courts? It is not a decision for a politician. That is why we would be adamant that both of these amendments are taken seriously and carried.

I echo Deputy Wallace's points. It is almost exactly a year since the Government published the first heads of a Bill on a policing authority, and while this version is radically different and inferior, the one we got in November of last year was not any great shakes either. That said, I find it quite shocking that the Government has on more than one occasion lauded this as one of its great achievements in government. I also find it quite shocking that the Minister for Justice and Equality, Deputy Fitzgerald, could not deign to be here when she made what must be her 79th public appearance in welcoming the same-sex referendum result, which obviously everybody is happy about. We all voted for it so of course we are. That was a judgment of the people so it is shocking to milk it for the length of time it has been and not have the time to come to the House.

However, that is less shocking than what happened with the amendments. To register the point, we all like to work in a spirit of co-operation and even though members of the Committee on Justice, Defence and Equality stated that they could not attend a meeting to discuss the amendments, that committee went on regardless. Let us remember that we got a note this morning with the grouping of the amendments tabled on this Bill. There was no mention of anything being out of order on the first grouping we received but two hours later, after 12 o'clock, another grouping was issued to tell us that a chunk of amendments had been ruled out of order because they were not discussed on Committee Stage, when all the Opposition Members made it abundantly clear they were not in a position to attend. When the Government, in putting forward a Bill that is supposed to be delivering transparency and accountability in policing, does it in such an underhand manner, it undermines the Government's argument. Unfortunately, the Government will pay a heavy price for that because we will insist on our democratic rights on every amendment now being adhered to. Whereas we might have been more amenable to speed up the passage or whatever, why would any sense of co-operation be given by the Opposition when the Government is so shameful in treating the Opposition in this regard on Committee Stage?

We are talking about a Bill that is a much more diluted version of what the Government put forward in November of last year. Deputy Wallace and I were looking at some of the information we put out at the time when we made the point that the legislation then was substantially weaker than Deputy Wallace's Bill which was passed on Second Stage in the House and which the Government allowed to lie derelict. Deputy Wallace's Bill delivers real Garda accountability and a proper independent Garda authority. It was put together with major stakeholders such as the Irish Council for Civil Liberties, ICCL, the then Irish Human Rights Commission, the Combat Poverty Agency, Social Justice Ireland and all the other organisations, not least of which were the countless people we met throughout the country who have been crying out for and demanding justice in this area because of the difficulties they experienced at the hands of An Garda Síochána. Critically, it also included members of An Garda Síochána who found the structure incredibly inadequate in taking forward grievances they had.

The excuse put forward by the Minister on the previous occasion - I have asked her about this and she has failed to answer it - as the reason she has a watered-down version of what the Government was talking about previously is legal constraints, constitutional issues and the so-called advice of the Attorney General. When the history books are written about the record of the Government, the role of the Attorney General, Ms Máire Whelan, will feature. She will have at least a chapter or two devoted to her in terms of some of the decisions she has stood over. With regard to this one, however, we do not know. We have asked for the publication of that opinion and we have not got it. The advice on that rings hollow because it does not seem to stack up with the views being put forward by others. The Government states it had to row back because of the Attorney General's advice, that it would have liked something stronger and more robust but the Constitution does not allow that. That is not the case. In fact, most academics believe the Garda Commissioner might be allied to the Executive under Bunreacht na hÉireann. If the Government is relying on the advice of the Attorney General regarding constitutionality, then it should publish it.

Let us see it. It is only advice and her advice has been wrong before. If the Government thought it was wrong and there was a constitutional restriction on making the Bill better, why did it not call a referendum on it? The Government held a referendum on the age of the President, which nobody cared about. Why did it not hold a referendum on this at the same time as the marriage equality referendum? If the Government was worried about the Constitution, it could have put this to the people, who would not have disappointed.

The sections relate to State security. As Deputy Wallace said, Ireland's policing service is unique because of the way security comes under these issues. As he said, the Act contains no definition of State security. Our problem with the amendments is that the Bill is too broad. It is setting up the Minister as judge and jury on whether an issue is a matter of national security. The Garda Síochána is not democratically accountable if, as the Bill proposes, the Minister can say a certain issue is a matter of national security and therefore the authority cannot investigate it.

Deputy Wallace has highlighted the protest actions that could be included. We saw what happened with the water charges protests this year and the number of citizens who have been arrested for exercising their democratic right to protest. People have been charged with kidnapping. It has been ridiculous. Anybody would see it as lunacy. It is not acceptable. The excuse of national security can be used almost without limit based on the way the Government has drafted the Bill. It is very important to define who decides what is unlawful and to specify that there be reasonable suspicion, not just carte blanche for people to decide.

I would like the Minister of State to comment on the provision proposed in section 3A(1)(a)(ii)(III) that the Garda and the Minister decide whether something is unlawful. This is almost certainly unconstitutional. Under the Constitution, only a court can decide whether something is unlawful. The Bill is subverting parliamentary democracy and seems lunacy. Under this definition it could include issues such as water charges protests and protests against the installation of water meters. The Bill provides that the Minister retains full and direct control and the authority has no role in policing issues that arise given that the Minister can turn around and forbid the authority to investigate a matter on the grounds that it is a matter of national security. It is a major flaw in the legislation. As Deputy Wallace said, it was highlighted by many people who gave their opinion when the Bill was moved. It is a major flaw. We are proposing in amendment No. 3 the establishment of an independent arbiter with recourse to a High Court judge, for example.

National security is one of the overriding issues in the proposed legislation and we need to consider it. Some of the organisations that contributed to the discussion proposed other options and the Government could have given them proper consideration. For example, the Irish Human Rights and Equality Commission, IHREC, had no difficulty with issues of, say, national security policing being examined by GSOC or overseen by the proposed authority, which we would like, where national security policing impacts on the fundamental rights of individuals. The authority should also have a liaison role with any Oireachtas committee which has competence for national security policing review, as per the IHREC recommendation. The IHREC pointed out that it is a requirement of the European Court of Human Rights that we have an independent body to provide oversight on national security policing. We are discussing a so-called independent Garda authority that does not have independent oversight of national security policing. Instead, the Government is using this as a fig leaf - a big wall, rather - to hide behind and avoid public scrutiny.

The Government had other options. Some of the academics who gave up their time and contributed to the process suggested other options. For example, Dr. Vicky Conway, in her presentation in Farmleigh, proposed two different approaches on security issues. The Government could have transferred security matters to an alternative agency, as suggested by the Committee on Justice, Defence and Equality. An alternative was the Probation Board for Northern Ireland, PBNI, approach of removing these matters from the purview of the authority with some exceptional opportunities of review by way of some sort of special-purpose committee. The protection of judicial oversight in differentiating between policing and security matters, which we are setting out, is the absolute minimum. Without it, one has nothing. One is just saying the Minister can decide and that is it. If this is the case, we might as well wrap up and not have the authority. As an absolute minimum a High Court Judge is necessary. This is why we propose the amendments.

That the two are so intertwined in the police service is a key part of the Bill. If the Government is not prepared to disentangle them, there is nothing unconstitutional that could not provide the Government with giving more accountability in this regard. It is regrettable. I have no doubt it will be used. Deputy Wallace is correct to point to the opinions of people such as Conor Brady, a highly respected former head of GSOC, who identified that the excuse of State security is a major obstacle to GSOC investigations into the Garda Síochána. We have no reason to believe that the situation has improved in the years since he left GSOC. All evidence would suggest it has deteriorated. Some of the adjudications GSOC has made of late have further diminished the public’s confidence in the organisation’s ability to deal with Garda complaints and hold gardaí to account. If we have a problem with national security being used in one Garda accountability body, to establish a policing authority and allow final decisions on what it can and cannot investigate at the door of the Minister is political policing and political interference. It is not delivering genuine Garda accountability and is not the way forward. The Government would be better off doing nothing than going down that road.

No Opposition Member was present on Committee Stage. Determining whether amendments are allowed is a matter for the Ceann Comhairle and he made his ruling. The Minister for Justice and Equality, Deputy Fitzgerald, is attending the summit on the migration crisis in Valletta. During the past year, it has been the most pressing issue for politicians across our Continent. Everybody should respect the importance of the Minister attending meetings such as this, as well as the Justice and Home Affairs Council meetings which she attends. It is essential that Ireland be represented and that we show solidarity with member states that are having a very difficult time dealing with an enormous humanitarian crisis for those who have the misfortune to find themselves in it. The Minister would, if she could, prefer to be here to participate in this Report Stage debate, which I am happy to do on her behalf.

Section 4 inserts into the principal Act a new section 3A which provides a definition of "security services". We had a discussion about the reality of policing and security being functions for the Garda Síochána at present.

The Garda Commissioner will report to the authority on policing matters and will be fully accountable to the Government for security services. That will continue to be the case. The definition encompasses, among other matters, functions linked to offences under existing legislation, including offences under the Offences against the State Acts 1939 to 1998 and the Criminal Justice (Terrorist Offences) Act 2005. It also encompasses functions linked to espionage and sabotage. The definition does not expand existing Garda powers in the field of security and a specific exclusion is provided for lawful advocacy, protest or dissent. Such matters were referred to by Deputy Wallace in his contribution.

Amendment No. 1 seeks to qualify the security function of the Garda Síochána in a manner that would limit the definition of that function to a situation in which there is a "reasonable suspicion" of a threat to national security. If this amendment is applied to the substantive security powers of the Garda, it will impede the ability of our security services - our gardaí - to take proactive measures to prevent threats to national security.

Amendment No. 2 seeks to restrict the meaning of "unlawful acts" that subvert or undermine parliamentary democracy or the institutions of the State. As the Deputy has said, he wants this provision to relate solely to "acts which have been found by a Court to be unlawful". If this amendment is applied to the substantive security powers of the Garda, it will turn the criminal justice process on its head because it will mean that a court decision as opposed to statute law, for example, needs to be in place before the security services can take action to protect the State from acts that are about to happen and about which it is concerned.

As I have said, the proposed new section 3A does not expand the existing Garda powers in the field of security. In that context, it is not a substantive provision which can be relied upon by gardaí for the purpose of the exercise of their security functions. The substantive provisions for that purpose are found in the legislation that is listed in the proposed section 3A. The purpose of this section is purely to delineate which functions of the Garda Síochána will be overseen by the Minister and the Government and which of them will be overseen by the policing authority. In these circumstances, the Minister cannot accept amendments Nos. 1 and 2.

I would like to reply to some of the Minister of State's comments. The Committee on Justice, Defence and Equality asked us if we would be able to get to the meeting. We said it was not possible. I am sure Deputy Mac Lochlainn of Sinn Féin and Deputy Niall Collins were asked as well. None of us could go, so I do not know why the committee bothered asking us. I should point out that this is not the first Bill the Minister has missed. While I have no problem with her going to Malta, I suggest that if the Government is seriously concerned about refugees, the first thing it should do is stop allowing Shannon Airport to be used by the US military as an airbase from which to destroy communities worldwide. I remind the House that 2.1 million citizens have been killed by US military forces in Iraq and Afghanistan since 2001. Many of the troops who killed those people and many of the munitions that were used to kill them came through Shannon Airport or through Irish airspace. It is the height of hypocrisy for us to say we care about the refugees if we continue to allow Shannon Airport to be used as a US military airbase. Some 33 million people have been displaced by the wars-----

I advise the Deputy that no more than a passing reference to these matters is appropriate and ask him to return to the amendments before the House.

On the amendments, the Minister of State has said that this Bill does not expand Garda powers from the 2005 Bill. We are talking about the structure of a police authority that we are establishing. The thinking behind the establishment of this body was that it would be able to make decisions and help to stop people accusing the Government of having its paws all over policing. Deputy Shatter would still be in his former position as Minister for Justice and Equality if different legislation had been in place to prevent him from having his paws all over policing. The idea of providing for a police authority is to do away with the previous approach by creating a buffer. However, this is not the buffer we envisaged. In the form the Government is proposing it at the moment, it is only a pup. We need a police authority that has real authority and some independence from the control of the Government. We are not getting that.

I will be calling Deputy Wallace again.

I remind the Minister of State that the Government scheduled this debate. The Minister, Deputy Fitzgerald, was not in Valletta yesterday. She was having another press conference on the same-sex referendum. If the Minister's problem was that she had to attend the Valletta summit, we could have discussed this Bill yesterday. That is a very important point.

The Minister of State did not respond to what I said about the Attorney General's opinion, which I would like to see given that it is the Government's official justification for watering down this Bill. The essence of what is proposed in this Bill, as it will stand if our amendments are not adopted, is a continuance of Government control over policing. The effect of allowing for the possibility that State security considerations will be used to block the new Garda authority will be to deny the authority the right to oversee events.

I do not agree with the Minister of State's ludicrous suggestion that our proposal to include the words "reasonable suspicion" would prevent gardaí or anybody else from being proactive regarding these matters. One would imagine that if gardaí are investigating people for issues, they would have reasonable suspicion and would not be merely fishing or surfing for information on spec. As far as I am concerned, the importance of privacy and civil rights means they should not be proactive unless it is based on reasonable suspicion. The key point we are making about the word "unlawful" is that under our Constitution, something is deemed to be unlawful or otherwise if the courts deem it to be so. The way this legislation has been framed by the Minister is that it will give the Minister the power to interpret whether something is lawful. This is outside the Minister's constitutional provision and is outside the way our Constitution works with regard to the separation of powers between the Oireachtas, the Government and the courts. We are trying to limit some of the restrictions being proposed by the Government. The aim of our eminently reasonable amendments is to deliver greater accountability. It is unfortunate that the Minister of State has not responded to many of the points we have put forward.

For the record of the Dáil, there were two sittings at which this Bill was considered on Committee Stage. The Minister of State, Deputy Dara Murphy, presided over the first sitting. The Minister of State, Deputy Ó Ríordáin, presided over the second sitting which was unfortunately and disappointingly scheduled at a time and date when it could not be attended by any of the Opposition justice spokespeople who take questions. The Minister, Deputy Fitzgerald, did not attend either meeting and she is absent again today. It is outrageous that the Minister for Justice and Equality has missed two separate Committee Stage sittings and today's Report Stage debate. It shows a complete disrespect for the Opposition. I mean no disrespect to the Minister of State, Deputy Dara Murphy, when I say that. I appreciate that he is doing his job. This is supposedly a major Bill for the Government. It certainly should be a major Bill for the people. We did not have the Minister for Justice and Equality for Committee Stage and now we do not have her for Report Stage. I want to put it on the record that it is outrageous that this has happened.

I am very disappointed that our amendments have been ruled out of order. I do not tend to get into quarrels with the Bills Office which is very professional. I am disappointed because all the Opposition spokespeople attended the first day of the Committee Stage debate and tabled many amendments. When the Committee Stage proceedings went into a second day, the meeting was scheduled at a time and date that did not suit any of the Opposition Deputies for what I hope are very understandable reasons. Deputy Wallace and I were led to believe that because we had discussed our interlinked amendments in such detail on the day, there was an understanding that the amendments we could not discuss during the second half of the Committee Stage debate would be accepted. As Opposition Deputies, we are having to deal with the failure of the Minister for Justice and Equality to show up for two separate days of the Committee Stage debate and for today's Report Stage debate. We are now being asked to accept the decision to rule half of our amendments out of order as a result of the scheduling of one of the days of the Committee Stage debate at a time and date when we could not be present.

The Opposition has been treated pretty badly here. I would like the Leas-Cheann Comhairle to facilitate me by ensuring every word I have just said and every word the two other Deputies have said is taken on board by the Ceann Comhairle's office and considered as a complaint about what has taken place here.

I can assure the Deputy that I will bring this to the attention of the Ceann Comhairle. I invite the Minister of State to make a final reply on this.

I would just restate the point that the Minister for Justice and Equality is in Valletta at a summit that is addressing the biggest crisis to affect our Continent in a generation and it is essential that she is there. It is a crisis that has come upon the European Union over the period she has been in office. She is an extremely hard-working Minister who would be here under normal circumstances but we are not living in normal times. It is the job of the Justice Ministers from all member states to attend these meetings to assist the countries of origin, the people who are migrating and the front-line destination states which are in a very difficult position.

I accept the points made by the Deputies but I am not aware of the specific details around the committee itself. I know the committee meeting took place during Dáil sitting times, during the hours that were allocated. Week in and week out, in order for these Houses to conduct their business, Government parties have substituted Deputies and have asked other party members to be in attendance at committee meetings in their place. I know that the facility to nominate others to deputise at committee meetings exists. It is a matter to discuss with the Chairman of the committee. I attended at the first Committee Stage round but was not present for the second round.

In response to Deputy Clare Daly, she will be aware that the Attorney General's advice is never published. I know that Deputy Daly tabled a parliamentary question on that issue but the Minister is not accountable to the House with regard to advice given by the Attorney General. Our Attorney General has done and continues to do an excellent job during a period in which there has been a remarkable amount of legislation in development. Her advice is very much cherished and valued by Cabinet and by the Government. I have no doubt she will continue to give that exemplary professional advice to the Government in the same fashion as she has done to date.

I read all of the Fennelly report so I find it very difficult to agree with the Minister of State's last comment.

The Minister of State suggested in his earlier contribution that if this were to be applied, namely, the substitution of "unlawful acts" with "acts which have been found to by a Court to be unlawful", it would turn everything upside down and the Garda Síochána would not be able to act on the spot. No one is saying that members of An Garda Síochána should not be allowed to act on the spot. It is a matter of whether something is deemed to be an issue of State security. More often than not, decisions that are made are not necessarily made in the heat of the moment. Often such decisions are contemplated in advance. When GSOC, for example, looks for information or wants to check a Garda barracks, the Garda Commissioner is able to say it is a matter of State security and that she cannot let GSOC in to search that barracks. That is not a spur of the moment action; that is contemplated. There have been many instances where decisions could be made by an independent body like the policing authority on whether an issue should be deemed to be a matter of national security. As long as the Government decides what constitutes a matter of State security, we will never be happy with how this is dealt with and we will certainly be pressing our amendments.

Amendment put:
The Dáil divided: Tá, 37; Níl, 69.

  • Adams, Gerry.
  • Aylward, Bobby.
  • Broughan, Thomas P.
  • Calleary, Dara.
  • Colreavy, Michael.
  • Coppinger, Ruth.
  • Crowe, Seán.
  • Daly, Clare.
  • Doherty, Pearse.
  • Ferris, Martin.
  • Fitzmaurice, Michael.
  • Fleming, Sean.
  • Fleming, Tom.
  • Halligan, John.
  • Healy, Seamus.
  • Keaveney, Colm.
  • Kelleher, Billy.
  • Kirk, Seamus.
  • Mac Lochlainn, Pádraig.
  • McConalogue, Charlie.
  • McDonald, Mary Lou.
  • McGrath, Mattie.
  • McLellan, Sandra.
  • Moynihan, Michael.
  • Murphy, Catherine.
  • Naughten, Denis.
  • Ó Caoláin, Caoimhghín.
  • Ó Fearghaíl, Seán.
  • Ó Snodaigh, Aengus.
  • O'Brien, Jonathan.
  • O'Sullivan, Maureen.
  • Pringle, Thomas.
  • Ross, Shane.
  • Stanley, Brian.
  • Tóibín, Peadar.
  • Troy, Robert.
  • Wallace, Mick.

Níl

  • Bannon, James.
  • Barry, Tom.
  • Butler, Ray.
  • Buttimer, Jerry.
  • Byrne, Catherine.
  • Byrne, Eric.
  • Cannon, Ciarán.
  • 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.
  • Deering, Pat.
  • Dowds, Robert.
  • Doyle, Andrew.
  • Fitzpatrick, Peter.
  • Griffin, Brendan.
  • Hannigan, Dominic.
  • Harrington, Noel.
  • Harris, Simon.
  • Hayes, Tom.
  • Howlin, Brendan.
  • Humphreys, Heather.
  • Keating, Derek.
  • Kehoe, Paul.
  • Kelly, Alan.
  • Kenny, Seán.
  • Kyne, Seán.
  • Lawlor, Anthony.
  • Lynch, Ciarán.
  • Lynch, Kathleen.
  • Lyons, John.
  • McEntee, Helen.
  • McGinley, Dinny.
  • McHugh, Joe.
  • McLoughlin, Tony.
  • Mitchell O'Connor, Mary.
  • Mulherin, Michelle.
  • Murphy, Dara.
  • Neville, Dan.
  • Noonan, Michael.
  • Ó Ríordáin, Aodhán.
  • O'Donovan, Patrick.
  • O'Dowd, Fergus.
  • O'Mahony, John.
  • O'Reilly, Joe.
  • O'Sullivan, Jan.
  • Penrose, Willie.
  • Perry, John.
  • Phelan, John Paul.
  • Rabbitte, Pat.
  • Reilly, James.
  • Ring, Michael.
  • Ryan, Brendan.
  • Shatter, Alan.
  • Spring, Arthur.
  • Stanton, David.
  • Tuffy, Joanna.
  • Twomey, Liam.
  • Wall, Jack.
  • White, Alex.
Tellers: Tá, Deputies Joe Carey and John Lyons; Níl, Deputies Clare Daly and Mick Wallace.
Amendment declared lost.

I move amendment No. 2:

In page 6, line 32, to delete "unlawful acts" and substitute "acts which have been found by a Court to be unlawful, and which".

Amendment put:
The Dáil divided: Tá, 25; Níl, 70.

  • Aylward, Bobby.
  • Broughan, Thomas P.
  • Calleary, Dara.
  • Coppinger, Ruth.
  • Daly, Clare.
  • Fitzmaurice, Michael.
  • Fleming, Sean.
  • Fleming, Tom.
  • Halligan, John.
  • Healy, Seamus.
  • Keaveney, Colm.
  • Kelleher, Billy.
  • Kirk, Seamus.
  • McConalogue, Charlie.
  • McGrath, Finian.
  • McGrath, Mattie.
  • Moynihan, Michael.
  • Murphy, Catherine.
  • Ó Fearghaíl, Seán.
  • O'Sullivan, Maureen.
  • Pringle, Thomas.
  • Ross, Shane.
  • Shortall, Róisín.
  • Troy, Robert.
  • Wallace, Mick.

Níl

  • Bannon, James.
  • Barry, Tom.
  • Butler, Ray.
  • Buttimer, Jerry.
  • Byrne, Catherine.
  • Byrne, Eric.
  • Cannon, Ciarán.
  • 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.
  • Dowds, Robert.
  • Doyle, Andrew.
  • Fitzpatrick, Peter.
  • Griffin, Brendan.
  • Hannigan, Dominic.
  • Harrington, Noel.
  • Harris, Simon.
  • Hayes, Tom.
  • Howlin, Brendan.
  • Humphreys, Heather.
  • Keating, Derek.
  • Kehoe, Paul.
  • Kelly, Alan.
  • Kenny, Enda.
  • Kenny, Seán.
  • Kyne, Seán.
  • Lawlor, Anthony.
  • Lynch, Ciarán.
  • Lynch, Kathleen.
  • Lyons, John.
  • McEntee, Helen.
  • McHugh, Joe.
  • McLoughlin, Tony.
  • Mitchell O'Connor, Mary.
  • Mulherin, Michelle.
  • Murphy, Dara.
  • Naughten, Denis.
  • Neville, Dan.
  • Noonan, Michael.
  • Ó Ríordáin, Aodhán.
  • O'Donnell, Kieran.
  • O'Donovan, Patrick.
  • O'Dowd, Fergus.
  • O'Mahony, John.
  • O'Reilly, Joe.
  • O'Sullivan, Jan.
  • Penrose, Willie.
  • Perry, John.
  • Phelan, John Paul.
  • Rabbitte, Pat.
  • Reilly, James.
  • Ring, Michael.
  • Ryan, Brendan.
  • Shatter, Alan.
  • Spring, Arthur.
  • Stanton, David.
  • Tuffy, Joanna.
  • Twomey, Liam.
  • Wall, Jack.
  • White, Alex.
Tellers: Tá, Deputies Joe Carey and John Lyons; Níl, Deputies Clare Daly and Mick Wallace.
Amendment declared lost.

Amendments Nos. 3 to 6, inclusive, 81 to 86, inclusive, 88 and 102 are related and may be discussed together by agreement. Amendment No. 4 is a physical alternative to amendment No. 4 and amendment No. 6 is a physical alternative to amendment No. 5.

I move amendment No. 3:

In page 7, line 15, to delete “Minister” and substitute “the Ombudsman Commission, which will consult a designated Judge of the High Court who will act as an independent arbiter”.

We had agreed a different grouping. In any event, amendment No. 3 seeks to substitute in section 3A "the Ombudsman Commission" for "Minister" and to provide that the Ombudsman Commission will consult a designated judge of the High Court who will act as an independent arbiter. We have partially touched on this principle already. The amendment is intended to prevent the excuse of national security being invoked by the Minister to prevent a full investigation by GSOC. The legislation as drafted proposes to set the Minister as the final arbiter where there is a disagreement over whether an issue is considered a policing or a security issue. The Minister could be self-interested in such a categorisation and it is illogical to consider that a safeguard of any sort.

Despite the statement by Josephine Feehily, who is to be chair of the policing authority, that the demarcation between policing and security was something to be tested, no appeal to the courts is provided for. There is no way to test it and the Minister has the final say. Decisions on national security and policing should be dealt with by an alternative body such as GSOC and overseen by an independent arbiter such as a High Court judge. We suggested GSOC as the relevant body so that the amendment would not be disallowed. If we had suggested some other new body, our amendment would have been thrown out on the basis that it was going to cost the Exchequer money, God forbid. We would not like to do that. Although it is GSOC that is referred to, it is our belief that some independent body should be involved in the process.

Our policing Bill would have allowed the Minister a say in the decision on whether something should be deemed a matter of national security. It would also have given the policing authority a say. If they could not agree, a judge would have become involved. That is not the case with this Bill, under which the Garda Síochána and the Minister are the final arbiters and there is no independent decision maker.

The Irish Human Rights and Equality Commission, IHREC, stated that it had no problem with issues of national security policing being examined by the Garda Síochána Ombudsman Commission, GSOC, or overseen by the proposed authority. The protection of judicial oversight in differentiating between policing and security matters is the absolute minimum that is acceptable. All such matters should be decided by a High Court judge, as simply providing for judicial oversight can mean rubber-stamping and a one-day annual review of sample categorisations, which we have encountered a number of times in terms of surveillance, for example, gardaí giving themselves permits to bug vehicles, etc. Instead of going to court to get an order to initiate surveillance, a garda can get a senior officer's permission. Such transactions are supposed to be examined at the end of the year by a judge but he or she only rubber-stamps them after examining all of them in one day, having travelled to a number of places in the city to do so. It is not a serious exercise. We recommend more oversight and independent decision making.

We are confused by the grouping because we are operating with the earlier grouping we received and are not sure which group of amendments is being discussed now. That is a consequence of the manner in which the issue was handled this morning. We will operate off the initial grouping.

We are discussing an attempt to move away from the Minister being the final arbiter in these matters. The idea that the demarcation between policing and security is unclear but can be tested is not good enough. There is no appeal to the courts and no way to test it. Under the Bill, the Minister will have the final say. We want to insert a buffer at least. I am not overawed by High Court judges and they are not necessarily the be all and end all in deciding these matters, but they are a step removed from the Oireachtas and there is an independence around them. With the Government not breaking the political link in the Bill, we believe that this is the best way to deal with the issue.

This relates to the point on State security, which is not defined in the Garda Síochána Act 2005. In certain cases where GSOC wanted to investigate matters but the Garda authorities or the Garda Commissioner objected to that on grounds of national security, the Minister was the final arbiter in the disagreement. A procedure is in place under section 100 of the Act, in that a designated High Court judge can, at GSOC's request, review the operation of section 99 and any regulation issued under sections 96 and 126, which allow a garda who is requested by GSOC to provide a document in connection with a GSOC investigation to refuse on grounds of national security. At that point, the matter is referred to the Minister for a direction. If the matter does not relate to State security, GSOC can appeal to the Circuit Court for a direction. From my parliamentary questions, I know that GSOC has not applied to the Circuit Court on any of these issues. The Government appointed a judge to administer this system, but that was only last February, which is surprising.

No applications on matters that cited State security have been made in the lifetime of this Government. This fact could be viewed in two ways. On one hand, is it not grand that the provision has never been invoked and there has never been an attempt to hide behind national security and, as such, what are we worried about? On the other, what is the problem with accepting our amendment? We should always err on the side of being human rights compliant, open and transparent. We must view this issue in the context of what we are discussing. The Bill is supposed to deliver accountability and transparency to the Garda, but it does not break the political link if the Minister can object.

Our amendment No. 3 is not the best thing ever, and we did not draft the provision this way when we tabled our Bill, but it at least provides the protection of judicial oversight in this matter. It is preferable in that regard.

As the Minister of State will recall, we had an extensive debate on this matter on Committee Stage. I am very alarmed. When the Minister was in attendance at an event organised by the Law Society and the IHREC, Mr. Conor Brady, a former member of GSOC, made the sensible proposal that whenever something was deemed to be a matter of State security by the Garda when the police authority or GSOC requested information, a way to separate politics from policing, which is what this Bill is supposedly about, and have an independent adjudication would be to have a member of the Judiciary appointed by the Chief Justice, Mrs. Susan Denham, decide on whether it really was a matter of State security. The Bill defines "State security", thereby providing the independent member of the Judiciary a legislative footing to decide whether the concern put forward by the Garda Commissioner was valid.

For the life of me, I cannot understand why the Government will not accept a sensible proposal like Mr. Brady's. I spoke to the Minister briefly as we left the Chamber and I told her that Mr. Brady's suggestion was excellent. She did not disagree but someone in the Department of Justice and Equality got a hold of the proposal and said, "Ho ho ho". That is what has happened with this Bill. Departmental officials have decided that they must retain their historical control over policing. The Government will put in place a new policing board, titled "Independent Policing Authority", to oversee policing, but the Government will still retain control over the meaty policing issues. That is disappointing.

Respected experts on policing in the State, for example, Mr. Brady and Dr. Vicky Conway, were invited by the Department of Justice and Equality, the Law Society and the IHREC to attend the event to which I referred. They gave their opinions but have been ignored by the Department. It is a large, historically conservative Department that has influenced the Minister to make these decisions. That is why votes are being called. This is big stuff. The Bill is a missed opportunity. The Government is undermining the independence of the authority from the get-go. Our party voted to support the Bill on Second Stage in good faith, expecting amendments to be made on Committee and Report Stages. Over the two days that we sat on Committee Stage, the Minister was not present. On Report Stage today, she again was not present.

The Government controls the sittings, not us. It is the Minister's choice not to be present. Unfortunately, as the Bill stands, and considering the Minister is not even present to hear the arguments we are making on it, we will be voting against it at the end of Report Stage. This is very much regretted.

Debate adjourned.