Members of the House are no doubt already aware of the circumstances in which this Bill comes to be introduced, but it is right nevertheless that I should make a reference to those circumstances, if only for the record.
The Government decided on 19 January 1978 to remove from the office of Commissioner of the Garda Síochána the then holder of that office, Mr. Edmund P. Garvey, and on 20 January 1978 they decided to appoint Deputy Commissioner Patrick McLaughlin to succeed him. Mr. Garvey subsequently took legal proceedings which resulted in, amongst other things, a finding by the Supreme Court that the removal from office was null and void. This, of course, meant that Mr. Garvey was still legally Commissioner of the Garda Síochána and, since the law provides for only one Commissioner, it followed that Mr. Patrick McLaughlin did not hold that office or rank.
The judgments given in the Supreme Court make it clear that the right of the Government to remove a Commissioner from office is not questioned and that the Government were free, if for adequate reason they considered it necessary, to make a new decision removing Mr. Garvey from office, provided certain procedures were adopted.
The Government were satisfied that Mr. Garvey should not be allowed to remain in office but considered it right, as they did in January 1978, to give him the option of resigning. He availed himself of that option. In saying this, I should like to make it clear, as I did in the other House, that I am aware that he is reported in a newspaper as having said that he "retired" rather than "resigned". As far as I am concerned, nothing hinges on any distinction that might be thought to exist between those two terms—the position is that the solicitors acting for him used the word "resign" in the relevant letter to me and he himself used the word "retire". He has qualified for, and has been formally awarded, maximum pension and maximum gratuity.
His resignation was expressed to be with effect from, and was accepted as from 14 May and Mr. McLaughlin has been formally reappointed as Commissioner from the following day, namely 15 May.
There is, therefore, a need to validate actions of Mr. McLaughlin during the period of 16 months or so when he was carrying out the functions of Commissioner but when, as it now transpires, he did not hold the office. There is also a need to validate acts done by some others.
I intend to refer, in a few moments, to various kinds of acts or actions that would or might need validation. I believe that what I will be mentioning will in fact be, for practical purposes, a comprehensive list, but I cannot commit myself to a claim that it is comprehensive because, in the nature of things, it would be virtually impossible to be sure.
It might be suggested that this means that the House is being asked to validate something without an assurance that it has available to it complete details of what it is, or may be, validating by passing this Bill. I would like to make two points in reply.
The first point I would make is that I believe that everything that could reasonably be thought to be of possible interest to the House will in fact have been mentioned and I can assure the House that that is certainly my intention.
The second point is the more important one and it is this. There is no question in this Bill of the House being asked to give, directly or indirectly, any element of support to the Government's decision in relation to Mr. Garvey or to any aspect of that decision. The passing of the Bill would not be, and could not be interpreted as being, an endorsement of the Government's decisions or actions. Furthermore—and this is the essential issue—the passing of the Bill would not be something done for the benefit of the Government, or for my benefit as Minister for Justice. The House is being asked to approve of the Bill on one basis only, and that is that it ought to be enacted in the public interest and so that the interests of the community as a whole will not suffer.
To put that another way, the arguments for validation are independent of the merits of what occurred in relation to the former Commissioner. He, for his part, is pursuing his claim in the High Court, as he is entitled to do. However, given that he has his right to pursue any claim he wishes to make, and that the Bill does not seek to interfere in any way with that right, there is no valid reason why the community should have to suffer through consequential defects in other areas. More specifically, there is no valid reason why a consequential defect in, for instance, the assignment of a superintendent to a particular district should be allowed to affect the legal effectiveness of the ordinary discharge by that superintendent, or by the gardaí under his direction, of the duties that they carry out for the protection of the public.
I submit, therefore, that while no doubt the House would wish to be as fully informed as possible of what problems could arise in the absence of validation, the approach to the solution of those problems should not be on the basis of validating specific actions but should be on the basis that the validation should be as comprehensive as possible and subject only to the constitutional rights of anybody who might be adversely affected by a validation.
It could be suggested that it is possible that there is some person—I say "person" but of course it could be suggested that there may be more than one—who at present stands convicted of a crime and who, without this Bill, could have that conviction set aside, and that this Bill will take away that opportunity from him. To that I should like to say, first, that neither I nor anybody else can say if a situation exists where, because of what has occurred, some conviction or convictions could in the absence of this Bill be set aside: nobody, not even a judge, could say that because only a court properly convened and adjudicating on the issue could give an authoritative decision. Secondly, nobody can say whether, in the event that such a situation existed, this Bill would alter it. It appears clear that whether it would or not depends—and certainly may depend —on whether such an alteration would conflict with a constitutional right, and only a court could decide that. However, the point I put to the House is this. If in the course of day-to-day administration of justice a person who has been found guilty by the ordinary procedures of law must be allowed to escape the consequences of his convictions because of something that has nothing even remotely to do with the strength of the evidence against him, that is a situation that we as a community must accept under the law as it stands. To say we must accept it if we have to is, in a way, to state the obvious; but it is one thing to accept what we cannot change, but an entirely different thing for the Oireachtas to go out of its way to make exceptions that it need not make, exceptions that would suggest that there was some merit in the case that such a convicted person would be making to a court. In short, if in fact there is a loophole and if in fact this Bill can close it—and there are two "ifs"—then I submit that the Bill ought to close it in the interests of justice, because the community and not only the individual have a major stake in the administration of justice. That is the basis on which I submit the Bill to the House.
I will state frankly to the House that, for making this argument and referring to unmeritorious defences, I have been accused elsewhere of trying to pass judgment on particular cases. I deny this flatly. We are speaking of people who have been found guilty, not by this House or by me or by the Garda Síochána but by the courts. The House by passing this Bill, is simply saying that, as far as it is concerned, a person found guilty of crime on evidence that satisfied the court beyond reasonable doubt, evidence the accuracy of which is not being challenged, should not escape the consequences simply and solely because Mr. Patrick McLaughlin's appointment as Commissioner was invalid. If there are people who really believe that the Oireachtas should make an exception from this Bill specifically to enable that to happen, all I can say is that I believe that that view is wholly unjustified and that it does not take account of the rights of the public. The people concerned, I repeat, have been shown to be guilty. If they were to evade the consequences it would be on grounds wholly unrelated to the evidence of their guilt. I do not think I need labour the point further.
One of the most important functions in respect of which validation is necessary concerns the appointment of new members to the force. Every new member has to be appointed by the Commissioner—the precise terminology is "appointed and enrolled"—and it is, therefore, necessary to have validated all the appointments of new members during the period in question.
The Commissioner is also responsible for promotions up to the rank of inspector, and it is necessary to have those promotions validated. Appointments to the rank of superintendent and higher ranks are a matter for the Government and, accordingly, the question of validating those appointments does not arise except for one particular appointment to which I shall refer later. I should, perhaps, elaborate just a little on this question of promotion to superintendent or higher ranks because questions were raised in the other House about alleged changes in promotion panels used in connection with promotions to superintendent or chief superintendent. May I, therefore, say that I am not dealing here, any more than I did in the other House, with that issue? The establishment of panels is an administrative arrangement to assist the Government and has no statutory basis. Any question about their operation is, therefore, irrelevant to this Bill. I just want to say, for the record, that if, on another occasion, it becomes necessary or appropriate to discuss that particular issue, and if I am not inhibited by requirements of confidentiality or the like, I shall be quite willing to comment on the matter in question—but, as I have said, not on this Bill.
While on the subject of appointments, may I invite the attention of the House to an important distinction that is implicit in the terms of the Bill? That is that, while both the appointment of new members and the promotions to sergeant and inspector rank will be validated, the Bill, in so far as Mr. McLaughlin himself is concerned, validates only his actions, not his original appointment. This explains why the Bill contains a reference to his pay and conditions of service in respect of the 16-month period but does not do so in respect of the new members or newly-promoted sergeants or inspectors whose appointment or promotion, as the case may be, is in question. Once those appointments and promotions are validated, the entitlement of the members concerned to the appropriate salary and conditions of service follows as a matter of course. Mr. McLaughlin will not, however, be appointed retrospectively as Commissioner and, in the absence of a special provision, he could in certain circumstances suffer some diminution of pension rights. The reference to his pay is probably unnecessary but it is included as a precautionary measure and also because it would seem inappropriate to include a reference to conditions of service without including a reference to pay.
What I have referred to up to now concerns the validity of appointments within the force. There could also be some consequential matters. The first one I propose to mention arises from the fact that the Commissioner may, under section 3 of the Offences Against the State Act, 1939, give a written authorisation to a named superintendent to exercise certain functions that are primarily vested by that Act in chief superintendents. In practice, the only function of significance in this context is the extension from a maximum of 24 hours to a maximum of 48 hours of the period during which a person may be detained under section 30 of the 1939 Act. It has been the practice to grant such authorisations to superintendents attached to Border districts and to superintendents attached to divisional headquarters. I said in the other House—I am sure I need not emphasise that I state it as an opinion, not as a fact—that there is no injustice to anybody in the retrospective validation of those authorisations since they are authorisations that would have been granted, in accordance with well-established practice, irrespective of who was Commissioner, and the invalidity of Mr. McLaughlin's original appointment has no material relevance to the decisions taken by the relevant superintendents.
It might, perhaps, be inferred that, in referring to extensions from 24 to 48 hours of the period of detention of certain arrested persons, I am suggesting that statements made by persons during that period can now be seen to have been invalidly taken and to have been inadmissible in evidence and that, therefore, any conviction based on such an admission is invalid and that I am proposing to validate it. Let me therefore make it clear that I intend no such implications. Once a statement is voluntary, its exclusion, even if it has been taken irregularly, is a matter of judicial discretion and the courts have used that discretion to distinguish between irregularities that they thought were deliberate or due to negligence on the one hand and, on the other hand, ones that were inadvertent. They have admitted statements taken in the latter circumstances. I have, therefore, no reason whatsoever to think that the validity of any such convictions is in any way at issue. What I think may be at issue is the detention itself as distinct from the statement, but there again any irregularity was clearly involuntary and, on the merits, ought to be validated if possible.
In theory, there could have been similar situations in relation to the prohibition under the 1939 Act of certain types of public meetings but this did not arise in practice.
The authorisations I have been referring to are formally given by the Commissioner to certain superintendents under specific statutory authority. There are other situations in which there is no question of a specific statutory authorisation of a particular superintendent but in which, nevertheless, there could be room for argument arising from the fact that the assignment of a superintendent to his district took place during the period we are referring to. There are various provisions in statutes or in the Rules of Court or other statutory instruments whereby applications or notices of one kind or another are to be given to the superintendent of the district in which the person making the relevant application or giving the relevant notice lives or has a premises. The superintendent, in certain cases, has power to grant or refuse certain permits, certificates or the like, or to object in court to the granting or renewal of certain certificates or licences.
Although the assignment of a superintendent to a particular district is an administrative matter and is not referred to in statutes or statutory regulations, and although I think it could be cogently argued that a superintendent who takes up duty in charge of a district is, by that very fact, the superintendent for that district, it is clear that somebody wishing to challenge a superintendent's decision might argue that the assignment flows from, or involves, the exercise of the commissioner's general statutory function of directing and controlling the force. Consequently, if only to avoid sterile argument, those matters have to be covered also.
Reverting for a moment to functions exercised by the Commissioner, as distinct from persons deriving authority from him, I would mention also by-laws or rules which he is authorised to make under the Road Traffic Acts. I am informed that one set of traffic by-laws was made in the period in question relating to taxi stands in Dublin and one set of local and temporary rules relating to parking restrictions at Knock, County Mayo. If the taxi by-laws were invalid, the previously existing by-laws would still be in force since they would not have been validly repealed.
I do not think it necessary to refer in any detail to disciplinary decisions by Mr. McLaughlin as these are internal Garda matters and anybody who might feel aggrieved will be able to decide for himself what action if any he should take. As far as I am concerned, I believe that the correct decision for the Oireachtas to make is what I outlined at the beginning of my speech, that is to say, validate if and in so far as it is possible.
The Bill, as the House will have noticed, refers to things done by Mr. McLaughlin or by any other person. The expression "any other person" is, of course, limited by the context in which it appears—the validity conferred by the section can have no application otherwise than to acts which were invalid by reason of the fact that Mr. McLaughlin's appointment was not effectual. As the House is aware, the word "person", under the standard rules of interpretation, includes a body of persons and, in the present context, it includes the Government in that the Government, in January 1978, appointed a new Deputy Commissioner when, as it then appeared, Mr. McLaughlin had become Commissioner. Under the relevant statutory instrument, there was provision for only two Deputy Commissioners so it appears that the new appointment needs to be validated.
Another example of what is covered by "any other person" is a local authority putting up road signs—their functions in that respect are, by law, exercised subject to the consent of the Commissioner. The expression "any other person" is also intended to cover, if necessary, acts done in the course of their duty by those people I have already mentioned, namely those admitted to the force during the last 16 months, those who were promoted to the rank of sergeant or inspector in that period or those of chief superintendent or superintendent rank who were assigned to their division or district during that period. Naturally, only a small number of the official actions of any of those persons could come into question in any event, since most of their work does not consist of the exercise of statutory powers that might be open to be challenged in the present context. Moreover, in so far as such acts may need to be covered, it seems likely that they would be covered by the validation being accorded to Mr. McLaughlin's acts, on the basis that, once his acts were validated, everything that flows from them is automatically validated. There might, however, be room for some argument about that, so it seems safer and simpler to rely on the direct validation that the Bill proposes to give to them as things done by "any other person".
There is one other point in the text which I think may call for explanation, namely the words in brackets at the beginning of subsection (1) of section 1, referring to the satisfying of any condition precedent to the exercise or performance of a power or duty. This is included because a number of functions of the Commissioner may be exercised only on the basis that he is satisfied as to some factor or that he is of a certain opinion or that it appears to him that a particular situation exists. For example, he must be satisfied that an applicant for admission to the force is of good character or that an applicant for a taxi licence is a fit and proper person to hold such a licence. Although the satisfying of conditions of that kind naturally involves his considering the matter and reaching an opinion or conclusion and in that sense involves his doing something, there appeared to be some possibility of argument as to whether the phrase "everything done" would by itself clearly cover it and for that reason it was thought prudent to include those words that I have mentioned.
I have given what I think are the main examples of matters needing validation, though the House will appreciate that, in the nature of things, the list does not purport to be a complete one. I would like to make it clear, however, that although I referred earlier on to possible issues arising in criminal proceedings instituted during the period in question, this does not mean that I am suggesting that that is a matter of much practical significance. In fact I do not think, nor do the Garda authorities think, that it is likely to arise in relation to the conduct of criminal proceedings except in the sense that, in some cases, which I hope and believe would be a very small number, a question might be raised about, for instance, the authority to arrest. The reason I say that I am not aware that the issue would arise otherwise is that legal proceedings in the more serious cases are brought by the Director of Public Prosecutions and even in a number of less serious cases the DPP may also be the prosecutor. In those cases where a member of the force brings a prosecution himself, he is not, as a matter of law, acting on behalf of the Commissioner nor is it the Commissioner who, in practice, gives directions as to whether such proceedings should be brought.
The member is, therefore, not in any way acting as agent of the Commissioner. I suppose there might be some few cases where a person was convicted of assaulting a garda, or something of that kind, and where a point could be raised that it was one of the young recruits whose induction may have been invalid. Any such case is one which, as far as I am concerned, is wholly without merit and if the convicted person—if there be any such—believes he can evade the consequences, he will have to do so on his own initiative.
I have already indicated that, in asking the House to approve of this Bill, I am not in any way asking it to endorse any aspects of the decisions of the Government in relation to the former Commissioner. Those decisions are not at issue and I could not undertake to go into any detail about them, not just because they are irrelevant to the argument for validation but, more important, because certain important related issues are before the High Court and, in accordance with long established practice, we ought to avoid issues that are sub judice. In brief, if I were to embark on any discussion of the merits, I would be open to be accused of attempting to conduct a trial on an issue that is already before the High Court. This is an area in which I cannot say, with any confidence, precisely what aspects are likely to be in question in the High Court but, since there is a claim for damages, I have to assume that any aspect of the entire circumstances preceding or relating to the Government decision of January 1978 could become relevant to the proceedings.
I did, however, give to the other House some factual statements, which are not intended to be in any sense an argument justifying any decision or action of the Government. The Government, needless to say, believe that they were, in fact, justified, but all I intend to do here, in the remarks I now propose to make, is to correct an impression that in the legal proceedings taken against them the Government had decided that they had no case to make except to rely on the strict letter of the law and that on that issue they lost, but this is not the position.
As long ago as 31 January 1978, the Taoiseach publicly stated—his statement was made in the other House—that the Government lost confidence in Mr. Garvey as Commissioner. Mr. Garvey took a legal action in the High Court. Counsel on both sides agreed that, instead of embarking on possibly protracted litigation in the High Court on issues that might prove irrelevant, it would be in the interests of all parties to get an initial authoritative ruling on what both sides agreed was a preliminary issue, namely whether the Government had, as a matter of fact, unqualified authority to dismiss a Commissioner without notice and without giving reasons. To ascertain this, three specific, agreed questions were put to the High Court and, on appeal, to the Supreme Court.
In the event, the Supreme Court not only answered the questions, but decided the substantive issue as well. It is perfectly clear that, had they answered the preliminary questions in the only other way open to them, they would likewise, in that instance, directly or by necessary implications, have dealt with the substantive action also. Since counsel on both sides had agreed that the issue being determined was a preliminary issue, it is clear that, somewhere along the line, there was some misunderstanding. What is perhaps more immediately relevant here is that the Supreme Court interpreted the legal pleadings made on behalf of the Government as tantamount to an admission of allegations made in Mr. Garvey's statement of claim.
In the context of the particular case before the court, the Government are, of course, bound by the decision of the Supreme Court, that is to say, bound to accept that the particular pleading must be construed in that way. I must, however, make it clear that it had not been intended to be read in that way and that, read in that way, it does not correspond with the facts, because the Government do not at all concede that the assertions in the statement of claim present a true picture.
That is all I want to say on that issue—in other words, I am not here making any claim whatsoever regarding the merits of the case that I, on behalf of the Government, will be making on an appropriate occasion. I simply say, as I said in the other House, that I have a case to make and that I intend to make it when the time comes. That is only another way of saying what I said in the other House, namely that there was a background to what occurred but whether that background did, or did not, justify what occurred is a matter on which I am making no claim and producing no evidence at this stage. I think it essential to refer to it, however, if only because I did so in the other House and because it led to certain comments that are relevant in this House.
Amongst the things suggested in the other House was that there was no background until I became Minister for Justice and when, by way of interjection, I denied that, I was immediately accused of attacking my predecessor. As my predecessor is a Member of this House, I think it right to make my position clear. As far as I am concerned, my statement that there was a background means nothing more than that I have a case to make which I intend to make if, as and when the need arises. It is not a claim of justification. That there was a background is a matter of fact, not opinion and is, of itself, a non-contentious fact.
Likewise, it is a matter of fact, provable by documentation that part of that background extended backwards to my predecessor's time, and his colleagues in the other House were wrong in asserting otherwise. I am passing no judgment on anything done, or not done, by my predecessor in that respect, any more than I am making any defence for anything done, or not done, by myself. These things will have to await another day. What I said was said on a factual basis, in reply to allegations that were untrue. My predecessor, Senator Cooney, may have forgotten what it is I am referring to when I say that certain aspects of the background extended back to his time. I am, of course, prepared to facilitate him by showing him, privately, certain papers. He will, I am sure, be aware that I would be willing to do that anyway and the only reason I say it here publicly is to ensure that no Member of this House would think that I am taking an unfair advantage.
In the meantime, however, I repeat that I do not intend anything that I have said to be, in any way whatsoever, an evaluation of anything done, or not done, by the Government or myself, and likewise I do not intend anything I have said to be a commentary on anything done, or not done, by my predecessor. The time for evaluation will come on a later occasion and is not now.
I conclude by saying that the Bill is put forward to meet a need that clearly has arisen and on that basis I commend the Bill to the House.
