I welcome this opportunity to appear before the committee to present details of the general scheme of the Garda Síochána Bill 2003. The members of the committee will be aware that the general scheme was published by me on 30 July in order to promote public debate and consultation on the proposals outlined in the scheme. At that time I also published my general foreword which set out in some detail the background to this particular measure. As I said on that occasion, these proposals provide for far-reaching legislative changes which will affect our national police force in several important and very significant respects. They also represent the first major piece of legislative reform of the Garda Síochána since the foundation of the State, and the Bill which will flow from the process will form the basis for new relationships between the Garda Síochána on the one hand, and the Government and the people on the other, which will see us well into the future.
Even if the general scheme dealt with only one of the areas it covers it would be noteworthy; in fact it comprehends changes in six key respects affecting a redefinition of the relationship between the Government and the police, the strengthening of police accountability, enhanced co-operation between the police and local authorities, freeing up gardaí to tackle serious crime, an enabling provision for the establishment of a Garda reserve force, and finally, the setting up of a new, independent, Garda inspectorate, to investigate complaints against the police.
The background to all of this can be linked to two main developments. First, a comprehensive review of corporate governance in the Garda Síochána has been carried out in the context of the Garda Strategic Management Initiative (SMI). Second, the Government has decided that a new mechanism is needed to ensure openness and transparency in dealing with complaints against members of the Garda Síochána. Members of this committee will, no doubt, be aware that the existing Garda Síochána Complaints Board has itself acknowledged that the present arrangements regarding Garda accountability have not been an unqualified success, and that there are problems which need to be addressed.
I wish to stress, however, that in embarking on these groundbreaking reforms the position with regard to the role and responsibilities of the Minister for Justice, Equality and Law Reform under the Ministers and Secretaries Act, 1924 will not change or be affected in any way. Under that Act, the administration and business generally of public services in connection with law, justice, public order and police, and all duties connected with these matters, is assigned and administered by the Minister as head of the Department of Justice, Equality and Law Reform. The Act further states that the administration and business of the Department of Justice, Equality and Law Reform shall include the business, powers, duties and functions of police. The Minister is accountable to Dáil Éireann for all matters falling within his or her remit. The position in all these respects will remain exactly as it is, and it is proper in a democratic state that this should be the case.
In considering these matters, it is also necessary to take account of the role and special position of the Garda Síochána. The Garda Síochána is not directly comparable with the various police forces in these islands. It is and always has been an unarmed, unified and national police force responsible for policing throughout the State. It is also - and this differs from regional constabularies in the United Kingdom for instance - the national security force with responsibility for the security of the State, for intelligence gathering operations, for the implementation of asylum and immigration policies and, more recently, for the targeting of criminal assets through the operation of the CAB. Perhaps more than any other police force it performs these functions with the consent of the people and it prides itself on that fact. I merely highlight these matters because public debate on the reforms as set out in the scheme should start from that point.
One suggestion that has been made from time to time is for the establishment of a police authority, and, of course, this option would have to be considered in any comprehensive reform of the Garda Síochána such as I am proposing. The perceived advantage of such a body is that it interposes an additional layer of independent accountability between the political process and police management. The idea of such an authority may make perfectly good sense in the context of the UK regional police structure and in Northern Ireland where there are unique requirements associated with the need for confidence-building in a cross-community environment. I would contend, however, that where there is a single national police force, especially one which carries out the role of security service for the State as well, the case for setting up a police authority to act as a link between democratic institutions and the day-to-day responsibility for operational policing loses much of its force. Furthermore, I would contend that this additional layer in our scheme of things would very seriously dilute democratic accountability and political responsibility, and I do not propose to make any provision in the general scheme for such an unelected authority which would not be directly answerable to the people.
At the moment, the legal position of the Secretary General of the Department of Justice, Equality and Law Reform is that of the accounting officer for the force. This, in theory, allows for the micro-management of Garda decisions in a way that is no longer practical. The SMI review, to which I have already referred, proposed that the Commissioner should be the accounting officer for the force and makes other key recommendations to provide for a new statement of the relationship between the Commissioner and the Executive and between the Commissioner and the Oireachtas; a new statement of the respective roles of the Commissioner and the Minister for Justice, Equality and Law Reform; enhanced reporting arrangements and the introduction of a performance and accountability framework within the force from the Commissioner downwards. The general scheme contains proposals in respect of all of these issues.
In making such fundamental changes, great care has to be taken to ensure that there will not be any unintended negative consequences for all the parties involved, including especially the public, in this complex matrix of balancing responsibilities. We do not want to see a less effective policing system as a result. A robust balance has to be achieved between operational independence and public accountability, and between public accountability and effectiveness. The proposals as set out in outline in the scheme of the Bill strike that careful balance in this crucial area. It is important too that arrangements should be made within the parameters set by the Bill, which are flexible, bearing in mind that experience over the years has shown that a close working relationship between the Commissioner and the Minister which is founded on mutual respect and close consultation and co-operation is the key to effective policing in the State.
The general scheme also contains significant proposals for new consultative arrangements between the Garda Síochána and local communities at local government level. There is a close and logical connection between the functions of the Garda Síochána and those of local government. The time has come for a formal horizontal link to be established between local democracy, which is now constitutionally recognised and guaranteed, and the gardaí to their mutual benefit, enabling local authorities to have an input into local policing and enabling gardaí to have an input into local authority strategies which affect policing issues, ranging from planning to public order to estate management.
The proposal relating to the establishment of the Garda reserve is a significant development, but I must stress that it is a purely enabling provision. The Government has not yet decided to create such a body. I have already given a commitment to the Garda representative associations that the matter will not be proceeded with in the absence of consultation. Obviously, the setting up of a Garda reserve has important implications in relation to resources, functions and administration. The provision in the scheme is with a view to creating the opportunity for such a reserve to be put in place and, an important consideration in that regard is whether the Government and the Oireachtas consider that it would have a useful role to play in Irish society. The last thing I want to do is create some form of "yellow pack" policing body. However, there are many people around the country who would be willing to give of their time in serving with such a body to give something back to the communities in which they live. Such a development would have beneficial effects for the establishment of closer and deeper connections between the gardaí and the communities they serve. I emphasise, however, that the creation of a Garda reserve will never be a substitute for adequate resources.
The programme for Government commits us to the creation of an independent inspectorate with powers of an ombudsman. This in part flows from a recognition that the existing Garda Síochána Complaints Board has not been adequate for the task assigned to it, and from public demand for an answer to the age old question sed quis custodiet ipsos custodes? - “who shall guard the guards?”. The board, in its annual report for 1999 outlined the difficulties it was facing in discharging its statutory obligations when it noted that: “The board’s direct experience is that there is a lack of confidence in the current complaints system itself. This lack of confidence stems from a belief that the Garda Síochána (Complaints) Act 1986 does not provide either an independent or effective system for dealing with complaints against members of the Garda Síochána,”.
In drawing attention to this matter, I do not in any way want to detract from the excellent work that the complaints board has done within the constraints of the present system. I also want to acknowledge that, in terms of addressing wrongdoing, the Garda Síochána has often been its own sternest and most zealous prosecutor. The public demands, however, that an additional element of independence should be introduced into the complaints process, and of course, there are ECHR considerations to take into account in that regard as well.
Naturally, in looking at possible changes, the establishment of the Police Ombudsman in Northern Ireland had to be examined very carefully. Whereas many of the areas of policing North and South are the same, some areradically different. It would be trite and superficial to assume about policing on this island that "a one size fits all" approach would be appropriate.
Some people have argued for the establishment of an office of Garda ombudsman rather than an inspectorate as is proposed in the scheme. I have no difficulty in principle with nomenclature or with that idea, and I am open to suggestions because we are in a consultative mode at this stage. The important point is not the title of the new body, but the substantive matter of its powers, remit and effectiveness.
In that regard, one of the most important issues connected with the inspectorate will be the nature and extent of its investigative powers. I have made no secret of the fact that the head that will deal with this matter is still under consideration, as the matter is complex and sensitive. Rather than publish it in a form which would give rise to possible misunderstanding, I have chosen to delay its publication until I am satisfied that the correct balance will be struck between the effectiveness of the inspectorate and the effectiveness of the Garda Síochána, and between the rights and duties of all those likely to be affected. We have experience already of misunderstanding with regard to some of the published heads. It is clear to me, however - I want to emphasise this - as there have been some comments in the media to the contrary to the effect that the scheme of this Bill is in some sense ducking the issue, that an inspectorate by whatever name will require in certain circumstances powers of detention, search, seizure, and entry into premises for the proper discharge of its functions. Such powers need to be balanced by protections for those who will be affected by their exercise, including potential judicial oversight.
A mechanism must also be put in place for the effective resolution of potential conflicts between the exercise of the inspectorate's power and the exercise of similar powers vested in members of the Garda Síochána. It is obvious that if somebody has a power of arrest over another person, and two people sitting on opposite sides of the table are trying to exercise similar powers to different ends, there has to be some balancing mechanism to decide who is in charge and whose word goes on any particular occasion. I also have to consider how that balance will be struck to protect confidentiality, on which lives in some cases depend, and on issues relating to national security.
Rather than tie itself to particular propositions, the Government decided, in view of the huge importance of this legislation, that the process of consultation should proceed in parallel with the drafting process. I have made it clear that anyone with an interest in the matter of reform of the Garda Síochána will now have an opportunity to contribute to the debate. I do not refer merely to Garda representative associations, but to the Human Rights Commission or any NGO that feels it has a point of view to express. I use the term NGO in a broad sense to include political parties because they are more representative than many of the more vocal NGOs on these matters. This also applies to the various staff associations which represent the interests of the many civilian personnel who work with or in the service of the Garda Síochána.
Finally, I want to underscore the fact that we should never lose sight of the enormous legacy of respect that the members of the Garda Síochána have earned since the foundation of this State, and the foundation of the Garda Síochána, often in very difficult circumstances. I approach the matter from a position of support for the Garda Síochána, but I realise that we simply cannot leave things as they are. In order to maintain and build further on the solid foundation of public support and trust for the force, it is a fact that the Garda Síochána must change.