Vol. 178 No. 30
Before we commence I remind Senators that a Senator may speak only once on a Report Stage amendment, except the proposer of the amendment who may reply to the discussion thereon. In addition, on Report Stage each amendment must be seconded.
Amendments Nos. 1 and 2 are related and may be taken together. Is that agreed? Agreed.
I move amendment No. 1:
In page 11, line 18, after "property" to insert "and the human rights of individuals within the State".
I have tabled this amendment again to allow the Minister to reconsider it. It concerns an issue raised by the Irish Human Rights Commission. Human rights are an important element of the Garda Síochána's brief and something it should be concerned to defend as part of its role.
I second the amendment.
I have considered the issue, about which we had a lengthy debate on Committee Stage. It may surprise Senator Tuffy to discover that I have become increasingly convinced by my argument in this matter.
That is impossible.
We had a useful discussion on this subject on Committee Stage. I promised to accept the amendment if I felt it was correct. Following that undertaking, given on 7 December, I discussed the issue with the DPP, who saw some merit in the proposal. It is the intention in drafting the guidelines, in any event, to preserve the individual right of a garda in the matter of taking a prosecution in a court of summary jurisdiction. This would apply in cases where there might be extenuating circumstances. However, the fundamental proposition put forward in the Opposition amendment was that it should be widened to cover the question of not bringing a prosecution. This change is appropriate and I thank Senators for proposing the original amendment.
I thank the Minister for accepting our Committee Stage amendment.
I move amendment No. 4:
In page 15, line 37, after "faithfully" to insert "and to the best of my knowledge and power".
This amendment concerns the oath to be given. On Committee Stage the Minister said he would review the matter with a view to improving it. Our amendment seeks to bring it in line with what applies to the Judiciary, etc.
I second the amendment.
We considered the matter and decided not to accept the amendment. We do not know whether it strengthens the declaration, or oath, or weakens it. It may anyway be implied that a person would undertake to do something to the best of his or her knowledge and power. Having considered it carefully we were unable to determine its exact meaning. On balance we decided it was better not to accept it unless we knew the effect it would have.
I move amendment No. 5:
In page 21, between lines 11 and 12, to insert the following:
"(3) An agreement pursuant to this section shall be in writing and shall be laid before both Houses of the Oireachtas as soon as may be after it is made, and shall not enter into force until such time as the terms thereof have been approved by Dáil Éireann.".
I tabled this amendment because during the debate on an earlier Stage, I believe Senator Maurice Hayes suggested that international agreements should be published. I want to establish whether the Minister had considered it following the earlier debate.
I second the amendment.
Section 24 as drafted allows the Garda Commissioner to enter into oral and written agreements with other police forces. The effect of this amendment would be to preclude oral agreements, as it would require all agreements to be in writing. As was said on Committee Stage, the subject matter of these agreements between the Garda Síochána and police forces will concern policing and operational issues. The nature and content of these co-operative arrangements may be related to a variety of issues, some of which could be quite minor and temporary. It is unnecessary for such arrangements to be the subject of a written agreement except where their seriousness would justify this. It would not assist to have all such matters laid before the Houses of the Oireachtas. The Minister of the day can always be asked a parliamentary question if a Deputy wants to establish whether an agreement has been entered into. Members of the Houses can keep themselves informed in that way.
Amendments Nos. 6 to 15, inclusive, are related and may be discussed together by agreement.
These amendments concern Chapter 4, dealing with the establishment of joint policing committees by local authorities. These provisions have generated a great deal of interest in the Seanad, transcending political lines and party positions. We have already made changes to section 30 to bring in representation on these committees at town council level and we have moved away completely from the county and city development board model that was provided for in the Bill as published. During the debate on Committee Stage, the Minister of State, Deputy Brian Lenihan, was also sympathetic to certain points made regarding the guidelines provided for in section 31 and we have moved some way towards the changes sought in earlier amendments tabled by the Labour and Fine Gael Senators.
I will now outline the main changes. In section 31 we have agreed to use "shall" instead of "may" regarding the issue of the guidelines. This will require a change in the role of the Minister for the Environment, Heritage and Local Government. The existing wording refers to his or her consent, but with a mandatory provision it would have to change to a consultative role, as it is not possible to oblige a person to agree.
A second point also arises from the use of the word "shall". This was drawn to the attention of the House by the Minister of State, Deputy Brian Lenihan. Without it means nothing in the sense that section 31 and even the whole chapter could be put on hold if the view was taken and acted upon that it required the making of a commencement order under section 2(1) to bring its provisions into effect. Accordingly, reflecting the importance with which I regard these provisions and which is also reflected in the views of the many Senators who contributed to the debate on this matter, the new provision will contain the words "as soon as practicable after the passing of the Act".
In accordance with the wishes of all the Senators who spoke and in tandem with our own thinking in the matter, the provisions of section 31(2) on the making of the guidelines has been expanded to include the points that were made concerning, for example, Members of the Oireachtas, not just the Dáil, being on the committee; nomination of members by local authorities; the appointment of a chairperson from the local authority members; nomination by the Garda Commissioner of adequate rank and seniority; the establishment of subcommittees; the term of office of the committee; the application of qualified privilege; the attendance of bodies and persons before the committee; an enabling type of provision to allow for the guidelines to deal with the attendance of Members of the Oireachtas; and the circumstances in which meetings of the committee may be held other than in public.
A related amendment to section 32(2)(c) deals with the hosting of public meetings. The House will note that the text of this section in the version of the Bill printed as amended in Committee already contains a similar provision. This arises from the fact that, during the debate on Committee Stage on amendment No. 51 tabled by the Fine Gael Senators, we indicated our acceptance of the point. We meant to convey that we intended to table an official amendment with the appropriate wording. However, the text of the Fine Gael amendment has been carried into the Bill in its original form, which was not exactly what I had intended. If I did not make myself clear, I apologise to the Chair and the House. I accept responsibility for the fact that the Fine Gael Senators got away with it.
The effect is important.
I agree. Our official amendment has been drafted by Parliamentary Counsel and I am satisfied with the form it takes.
We submitted amendment No. 8 to have a proper definition of how the policing committees would operate. The Minister's amendment No. 9 addresses much of what we had proposed on Committee Stage and clarifies the matter even further. I commend the Minister for agreeing to do this. It was necessary to put meat on the bones of what was originally contained, which has been accomplished by the Minister's amendment.
I am glad the Minister has agreed to our proposal on public meetings and matters concerning police committees in a local authority administrative area, which is important. Rather than having, as we discussed, political parties arranging meetings with gardaí present, that will now be a function of the policing committee, which is important for local authorities and communities. I also welcome the other Government amendments in this grouping and I thank the Minister for agreeing to some of the amendments we proposed on Committee Stage.
Like Senator Cummins, I welcome the changes proposed here, which shows the Minister's propensity to approach these issues in an open-minded way. He has a great commitment to this matter. Leaving aside the policing aspect, the Bill represents the most significant local government reform that I have seen in recent years.
I welcome the change to the mandatory word "shall" rather than "may" in amendment No. 6. I also welcome amendment No. 9 which specifies precisely how the committees will be constituted and gives guidelines on their operation. I also welcome the privilege, which is clearly set out in amendment No. 15. Amendment No. 11 states, "the Garda Commissioner shall have regard to the need to ensure that such members are of appropriate rank and seniority".
It probably goes without saying — perhaps the Minister could consider the matter before the Bill is taken in the Lower House — but those who will serve on joint policing committees would have to be from the localities in which they will operate. I am sure this is understood but I do not know whether it needs to be specified. I welcome the idea of allowing the joint policing committees to appoint sub-committees.
I wish to raise a number of points in respect of amendment No. 9. The phrase "members of the local authority concerned nominated for such appointments" is used in paragraph (b)(i) of the amendment. On Committee Stage we discussed whether the county model or that relating to the area surrounding a town should be used. If the county model is used, a number of local authorities within any county will put forward nominees. If, however, the area surrounding a town is used, I understood from the Committee Stage debate — the Minister of State who was present agreed with this — that those living in rural areas who serve as county and not town councillors would not be excluded. I wonder if the term “local authorities” should be used in paragraph (b)(i) of the amendment.
The terms "persons nominated by other public authorities" and "such other persons as may be provided for in the guidelines" are used in paragraph (b)(i) and (ii), respectively. I hope — the Minister also expressed this view — that these committees should be comprised exclusively of elected representatives, be they councillors or Members of the Oireachtas, and members of the Garda Síochána. The provision allows for this model to be extended but restricting membership to elected representatives in the initial states will allow it to establish its own dynamics. In my view, this model will work well.
Paragraph (c) of the amendment states, “The appointment as chairperson of the committee of a member of the local authority concerned who has been nominated in accordance with paragraph (b)(i),.” The issue again arises whether both town and county councillors will be involved if the town model is chosen. In that instance, one of the local authorities would be responsible for nominating the chairman. Our local government has its own hierarchy and county councils have extensive resources. In my area, for example, Wexford County Council might have a turnover of €80 million or €90 million per year, whereas New Ross Town Council might have a turnover of €2 million. The resources that might be necessary in the future might be more easily provided by county councils. Perhaps, therefore, county or city councils should nominate the chairmen of the committees. Clarification may be required on this matter in that, depending on the model chosen, there may be an overlap in terms of the number of councils involved. If, for example, the town model is chosen, there may be an overlap of at least two councils and if the county model is adopted, there could be even more councils involved. Consideration must be given to this matter.
The Minister is committed to and deserves our commendation in respect of an initiative which will have a huge beneficial effect on policing throughout the country.
I thank the Minister for tabling amendment No. 6, which takes on board the points made by Members on different sides of the House on Committee Stage regarding the need to include the word "shall" in respect of the publication of guidelines. This is one of the initiatives for which the Minister will be remembered. It is positive in nature and will enhance local democracy. The Labour Party had proposed a similar idea but this is very much the Minister's initiative and I congratulate him on introducing it and ensuring that it will definitely come to fruition during his term of office.
As regards amendments Nos. 8 and 9, I thank Fine Gael which took on board some of the points I made on Committee Stage in respect of rephrasing its earlier amendment. I had been concerned that the previous wording might have excluded town councils from establishing joint policing committees. If such councils had been obliged to depend on sub-committees, a committee would have had to have been in existence in the first instance. These points were taken on board by Fine Gael and the Minister and I am very satisfied with both amendments. Clearly, however, it will be the Government's amendment, which is well phrased, that will be passed.
On the issue of privilege, I agree that, if possible, meetings should be held in public. That was the idea behind the original Fine Gael proposal. If we are to have democracy, it must be seen to work. I am aware that difficulties might arise and I understand why there is a need to grant privilege. Am I correct in stating that the privilege being introduced will be similar to that which already applies in respect of county councils and will not be as all-encompassing as that which obtains in the Houses of the Oireachtas? The term "without malice" is used in amendment No. 15 and those attending meetings will have to be careful in terms of what they say because people have a right to their good reputations. In light of the issues that might be discussed at such meetings, there will be a fine line to tread in terms of whether someone's reputation might be tarnished in any way. Due procedures will have to be observed.
I accept that some meetings may have to be held in private. That is the nature of things. However, I welcome the amendments tabled by the Minister, particularly in terms of the fact that they take on board the need to hold as many meetings as possible in public.
I thank the Minister and his senior officials for adopting amendments, requests, proposals and suggestions put forward by Opposition Members, Senator Jim Walsh and me on Committee Stage. I particularly welcome the fact that Members of the Oireachtas will now be included in the legislation. I was pleasantly surprised one of my suggestions to the effect that statements made at meetings and any subsequent publication thereof will be privileged for the purposes of the law of defamation has been included in amendment No. 15. This will prove of great assistance to the members of the committees and it is the first occasion on which a provision of this nature has been included in legislation. I thank those responsible for drafting the amendment for its inclusion.
The Bill will be made all the better by the Minister's adoption of suggestions that were made in good faith on Committee Stage. I know that he will be prepared to listen to further suggestions from Members of the Lower House. I thank the Minister's officials for being open to meet representatives from the GRA during the Christmas recess in order to discuss the Bill.
I will not repeat what previous speakers have said. We had a good debate on these matters on Committee Stage and the Minister has taken on board many of our suggestions.
The most important aspect of this issue — Senator Jim Walsh also adverted to it — relates to paragraph (c) of amendment No. 9, which states “the appointment as chairperson of the committee of a member of the local authority concerned who has been nominated in accordance with paragraph (b)(i),”. In other words, the chairperson will be a county councillor. That is extremely important. In recent years there has been a tremendous development in urban local authorities, in particular, whereby close relationships have grown up between their housing departments and anti-social units. In South Dublin County Council, the people who possess the relevant information and who have their fingers on the pulse of some of the communities work in the housing department. In law, the most important matter with which local authorities are charged is providing people with houses. This Bill will create links between local authorities, particularly their housing departments which possess information about troublemakers, etc., and the new committees. It is an important and major improvement that there will be direct links between the committees and the existing local authorities. I commend the Minister for taking on board our suggestions, particularly those relating to public meetings, etc. We had some useful exchanges on Committee Stage.
I thank Senators for their remarks and I pay tribute to them for helping to bring about this improvement to the Bill, as originally drafted. Senator Jim Walsh made a technical point about using the term "local authority" as opposed to that of "local authorities".
My plan is that every town and county council will have the right to have a committee. If a town council surrenders that right, its members will be entitled to attend meetings of another committee. If Milltown Malbay town council decides that it does not want a committee because of the size of the town, it will be able to opt out and nominate members to a larger committee.
I do not want the committees to be exclusive. If a community is large enough to have a local authority institution, it is probably big enough to have its own criminal, housing and traffic problems. I do not want it thought, however, that because a place has a town council, it can be coerced into not having one of these committees. If the people of a county decide three committees are enough, otherwise the gardaí would spend half their time attending meetings, the flexibility should exist in the legislation to allow for that.
There is absolute and qualified privilege. Anything that is not absolute is qualified to some extent. Privilege in this case refers to a discussion at a meeting of a joint policing committee — a person cannot just stand up and make a speech on the fringes of a meeting. Only a member of the committee or a person attending at the request of the committee is covered, someone shouting from the audience is not covered by privilege.
It must also be without malice. Malice has two meanings. If a person says something that he or she knows is not true, it is malicious, or if a person says something reckless about whether it is true or not, that is also malicious. If someone is accused of being a rapist in a case, it is no defence to say afterwards that he could have been because no one knew at the time. A reckless allegation without honest belief in its truth is a malicious statement for the purpose of defamation law. That is how malice will be construed.
I have not had the opportunity to study this in great detail but any subsequent publication of the statement is to be covered by privilege regardless of its being genuinely believed. If someone makes a statement that is proved to be untrue, I want the subsequent publication to be subject to the rubric that it cannot be repeated by someone who knows it is untrue but is trying to piggy-back on the original mistake. If a newspaper reporter hears someone say something he or she believes to be true, the newspaper should be able to publish that as his or her honest belief. If, however, it subsequently transpires that the person is clearly wrong, it should not be possible for a political opponent to publish the minutes repeatedly and say that because he or she believed it at the time, it carries perpetual privilege. I will look at that because we must get it right. It could render an injustice if someone says something that is honestly believed and subject to privilege but it is clear afterwards that someone else is repeating it dishonestly by publishing the minutes of the meeting. That would be unfair to the person on the wrong end of the mistaken statement.
I indicated during the debate that I am attracted to a 30-days period as an outside limit.
Amendments Nos. 17 to 19, inclusive, are related and will be taken together by agreement.
I undertook to consider if quarterly publication of statistical information should be made statutory. The point was made that whereas I was an enthusiast for this approach, a successor might not be so enthusiastic. It can and should be done. The specified period means a period of three months from the day the section comes into operation. To align the section with existing quarterly periods, it is probable that this provision will be started separately from other provisions in the Bill so that it does not create an anomaly.
I compliment the Minister for taking on board the specified period that we wanted to be defined. We intended the time period in amendment No. 19 to be ten days but we overlooked that and left it at three days. The Minister said it would take ten days to disseminate the information and we are happy with that.
Amendments Nos. 20 to 26, inclusive, are related and they will be discussed together.
I mentioned on Committee Stage that I was considering tabling an amendment to section 52(2)(b) to increase the penalty for causing disaffection. The subsection as currently drafted provides for a fine on conviction and indictment not exceeding €25,000 or imprisonment for a term not exceeding two years. If the indictable penalty of two years is left that way, there would be no power of arrest available to the Garda. This amendment provides for a power of arrest by increasing the term of imprisonment to five years. In keeping with that, the amount of the fine is also being increased to €50,000. That would align the penalty provisions in this section with those in section 53(2)(b), as they will be following acceptance of amendments Nos. 22 and 23.
The Minister has again taken on board some of the Committee Stage amendments we advocated regarding the level of fines. I am delighted with the proposal of a fine of €50,000 and five years imprisonment. We are prepared to accept this.
I welcome the Minister's amendments. We had also proposed amendments in this regard on Committee Stage.
Following discussion with the Parliamentary Counsel and, as indicated during the debate on the provision on Friday last, I am tabling this amendment to provide for a simpler wording following what Senator Leyden had to say about it.
I move amendment No. 28:
In page 46, between lines 23 and 24 to insert the following:
"72.—Notwithstanding sections 55 and 73, the exchange of any type of information or other form of co-operation between -
(a) the Garda Commissioner or any member of the Garda Síochána and the Ombudsman Commission,
(b) The Garda Commissioner or any member of the Garda Síochána and the Inspectorate,
(c) the Ombudsman Commission and a comparable body outside the State,
made in the course of, and in accordance with, the duties of that person's office, shall not be an offence.".
Unfortunately I was not in the House to discuss this matter on Committee Stage. Will the Minister examine this issue? Where a complaint is made to the inspectorate, the assumption is that the complaint would always be about members of the force in this jurisdiction. However, it could happen and, in fact, did happen in this jurisdiction some years ago — although I accept it is an exceptional case — that there may well be a situation where information could be given to the appropriate investigating authority in another jurisdiction. When I met the Police Ombudsman for Northern Ireland, I was informed that in the case of incidents occurring on the Border she did not believe she had a legal right to obtain information from the Garda Síochána because she is not a member of a police force but another body. I seek to make it possible for the inspectorate that will be established following the enactment of the Bill to answer queries from responsible agencies in other jurisdictions that are investigating matters. One might say there is no situation in which that would happen. However, it could happen, for instance that two officers in two forces in two different jurisdictions were involved in something dubious. We should ensure that the exchange of necessary information would be possible between the investigating agencies in both jurisdictions.
I will not press the amendment but I urge the Minister to examine this matter. Is he absolutely certain that at present information can be given between the Garda Síochána and the Police Ombudsman for Northern Ireland and, equally, that when the Bill is enacted that will be the case between the inspectorate here and other police agencies, most notably the PSNI? In the past there have been cases of serious complaint made against officers in other jurisdictions which may well have an impact on this jurisdiction. There was a famous case in Roscommon, the Dowra case, whereby an allegation was made against an officer from another police authority in respect of actions that person took. We should not hamper possible investigations occurring on a cross-Border level. That is why I think there needs to be provision for this.
I second the amendment.
This was discussed and opposed on Committee Stage. I have not changed my mind on it. The Minister of State tendered the reasons at that time. There is no similar provision in the Northern Ireland Act of 1998 in regard to the Northern Ireland Police Ombudsman and I am told one is not planned. I do not believe it is strictly necessary to make provision of the kind in question.
Section 55 states that a member, or person to whom it applies, shall not disclose in or outside the State any information obtained in carrying out his or her duties. Section 55 (40)(e) and (f) allow the disclosure of information where it is authorised by the Garda Commissioner or otherwise authorised by law. It is difficult to imagine a situation in which the Garda Commissioner would withhold such information from a person in those circumstances. However, there could be cases where the Garda Commissioner would have good reason to say that information must be withheld from an outside body for some other purpose. I do not wish to create a situation in which a member of the Garda, insisting on disclosing information, which would be strange, would subvert the Commissioner’s authority in this matter.
Sections 55 and 73 deal with information which has a harmful effect, which is the crucial element. If the disclosure of information is not harmful then it does not apply. As to whether something has a harmful effect, in dealings with bodies outside the country the Commissioner's authority has to be upheld in this matter. He cannot say this would be dreadfully harmful but Sergeant McDowell could say he does not agree and he will do so anyway. That would not be an acceptable arrangement, which is why I am not keen on the amendment.
The Minister is correct that police forces routinely exchange information. However, the point made to me by Mrs. O'Loan at the time was that she thought it would be wise to have a definite legal position so that she and her commission, which is not a police force but a public body charged with the responsibility of upholding complaints made against members of the police force in Northern Ireland, should have the right to obtain information from the Garda Síochána relating to her investigations. The reverse situation could also apply when the new inspectorate is established.
I concede that the Northern Ireland Police Ombudsman, Mrs. O'Loan, would want to have a right to receive information and for there to be no legal obstacle to this being provided. In this case we are dealing with sections 53 and 73 which deal with harmful information. It is expressly provided in both cases that if the Commissioner authorises a member of the Garda Síochána, no offence is committed. Likewise, in respect of section 73, if the ombudsman commission were to permit the release of information then Mrs. O'Loan would get it. If the amendment were accepted, any member of the Garda Síochána or the ombudsman commission staff, could subvert the authority of the ombudsman commission or the Garda Commissioner by doing a solo run claiming he or she is providing that information. This must be prevented.
I move amendment No. 29:
In page 58, line 31, after "investigation" to insert "and any interview conducted with a member arrested under this Act shall be subject to procedures which shall be prescribed by the Minister for the video and audio recording of interviews with arrested persons generally".
The Minister of State indicated on Committee Stage that the Minister agreed with the amendment's principles. I have tabled it again to allow the Minister to consider incorporating it in the Bill.
I second the amendment.
As indicated on Committee Stage, I am not opposed to the principle behind the amendment. However, there is no need to amend the Bill to achieve that objective. All of the safeguards applicable to members of the public in criminal investigations being carried out by members of the Garda Síochána will apply to members of the force in similar type investigations to be carried out by designated officers of the ombudsman commission. Gardaí will have the same rights, including the right to silence, as everyone else subject to criminal investigation. Access to electronic recording of interviews will be no different than for any other member of the public.
The Minister of State at the Department of Health and Children, Deputy Tim O'Malley, made it clear on Committee Stage that under existing procedures set out in the Criminal Justice Act 1984 and electronic recording of interviews regulations made in 1997, a member of the Garda Síochána who is being interviewed about any alleged offence or suspected illegal activity has the right to have the process recorded. It follows that in the circumstances covered by the Bill, the same situation should apply.
I move amendment No. 30:
In page 59, lines 35 and 36, to delete "complaint under section 90” and substitute “a matter under this Act”.
This concerns a matter raised on Committee Stage. Why is the power to search a Garda station restricted to investigation under section 90? The power to search a Garda station must be available when all matters covered in the Bill are being investigated. Is this a restriction on the ombudsman's powers?
I second the amendment.
Section 91 is one of the most important provisions relating to the ombudsman. It concerns the power of the designated investigating staff of the ombudsman commission to carry out searches of Garda stations. Considerable care and attention has been devoted to the provision. Due to the necessity for the ombudsman staff to carry out thorough and searching investigations, it must be balanced with the requirements of State security as Garda stations are repositories for sensitive security related material and information. This power applies to those cases where a complaint involving an offence is concerned. However, the power to search Garda stations is covered by the provisions in section 94 where an investigation can be undertaken by the ombudsman commission directly in the public interest without the necessity for a complaint having been made or on foot of a referral from the Garda Commissioner or by the Minister.
For reasons connected to the security of the State, this section provides that a search of a Garda station will only be carried out on foot of an order made by a member of the ombudsman commission who must also notify the Garda Commissioner and the Minister for Justice, Equality and Law Reform. It is proper that the Commissioner, as head of the force, should be informed of such a serious development. The role of the Minister is more akin to that of arbiter of the competing rights that might be involved. On the one hand, the Commissioner could contend the search would be prejudicial to the security of the State, while the ombudsman may argue the search is necessary for the proper investigation of a serious complaint or that it concerns the death or serious harm to a person as a result of Garda operations.
It is important to note that this procedure does not apply to every Garda station. This point seems to have been lost sight of in the course of earlier discussions on the matter. It will only apply to those stations designated by the Minister as stations that may not be searched except to a specified extent. After considering the matter, the Minister can issue directions allowing the search in whole or in part. This procedure is subject to scrutiny by a designated judge of the High Court who reports to the Taoiseach who is obliged to lay the report before the Houses of the Oireachtas. Provision is made for any sensitive material which could affect State security to be excised from the report.
I understood the point made by the Garda Commissioner that he might have deep State secrets in a filing cabinet in a particular station. If the ombudsman wanted to search there, the secrecy of these materials would then be violated. For those categories of Garda stations, a balancing mechanism is needed. If there is a dispute between the two sides, the Minister will act as referee. However, if there were a malign Minister for Justice, Equality and Law Reform, he or she is subject to the overriding watchdog role of a judge who will say, in a semi-public way, if he or she operated in a fair way. One could argue that the judge should have the entire function, leaving out the Minister. However, it is not right to ask members of the Judiciary to act as referees of first instance in disputes of this kind. Judges do not decide who has their telephones tapped or post examined. They do have a role in ensuring the statutory process of that activity, subject to fixed procedures involving the Minister for Justice, Equality and Law Reform, is upheld. If a Minister abuses his powers, a member of the Judiciary, under this supervisory watchdog role, ensures the constitutional rights of a citizen are not violated.
This is an analogous situation. Sensitive and confidential issues are involved here which is why the whole procedure applies only to cases where offences are involved or in the other circumstances mentioned. Transparency can go so far but in any effective society, some secrets must not be available to public view. Strangers cannot come in and look at these secrets. It is possible that the ombudsman commissioner will retain investigators from outside the jurisdiction. To allow them to walk into the holy of holies and look at the State's deepest secret, is a radical proposition. A balanced structure has been built that if the Garda Commissioner says no to the ombudsman commissioner, the Minister arbitrates. That arbitration process is the subject of supervisory scrutiny by the Judiciary.
The problem is that when all the checks and balances have been determined by this process, someone could smell a rat and the information could be removed. The Minister said it is possible that an investigating officer from the inspectorate could come from outside the State. Presumably, the officer is only there to get information on a specific complaint against a member of the force. It would not be a wholesale trawl through every document but only those specific to the complaint made.
I accept that someone, in bad faith, could raise an objection to introduce me as arbiter and to avail of that time to conceal or destroy information. That possibility has to be balanced against the other possibility that if immediate access is granted as of right to avoid that risk, the State's secrets will be available, in effect, to all inspectors operating under the mandate of the ombudsman commission. When the time comes to strike that balance, one has to choose between two slightly competing rights, neither of which is ideal. In an ideal world, one would love the commission's officials to go straight in without any question. One would hope that confidence would be maintained if the officials found anything confidential. We have created this architecture in a certain way for that reason. It is fairly unlikely that there will be surprise raids on parts of Garda stations in which security material is available. Section 81 provides for processes and procedures which require the Garda Commissioner to secure the premises in such circumstances.
It is like the securing the scene of a crime to preserve evidence
If one takes all those things into account, the legislation is probably as strong as we can make it.
I mentioned on Committee Stage that I was sympathetic to amendment No. 124, which had been tabled by the Labour Party. The amendment was similar to the amendment I have just moved, which has been agreed by the Office of the Chief Parliamentary Counsel. The net effect of amendment No. 31 will be the same as the net effect of the original Labour Party amendment would have been if it had been accepted. Any report prepared under section 109(2)(b) will, where appropriate, “contain recommendations for any action that the Inspectorate considers necessary”.
This is a drafting amendment to change the reference to "section 109(4)" in that section to "section 109(5)".
This is a drafting amendment to change the reference to "section 109(3)" in section 112(1) to "section 109(4)".
This is a drafting amendment to change the reference to "section 114(5)(b)(iii) or (iv)” in section 116(5) to “section 114(4)(b)(iii) or (iv)”.
We did not spot that one.
It is fairly obvious.
I am sure Senators will agree that very few of the Bills which are considered by the House receive the volume of debate given to the Garda Síochána Bill 2004. That the Bill has received such detailed analysis is an indication of the House's interest in it and its importance. Most of the time, there seemed to be at least six Senators contributing to the Committee Stage debate.
The Minister should be commended for introducing far-reaching changes and improvements in the operation of the Garda's policing of this country. He is undertaking major initiatives like the joint policing initiatives, the Garda ombudsman commission and the Garda inspectorate. He has outlined his proposals comprehensively in the House. I thank the Minister for spending so much time here, particularly during the exhaustive Committee Stage debate, when many matters were amplified. He showed a great disposition to adopt many of the sensible amendments which were proposed. The House has made a significant contribution to the evolution of the Bill. I thank the Minister.
I am sure many people involved in local government will welcome the Minister's initiatives and embrace constructively the opportunity to make policing transparent. Such developments will engender greater support for the Garda Síochána and introduce an element of accountability to the operation of the system. I thank the Minister's officials for the substantial amount of work they did. I wish the Minister, his family and his officials the compliments of the season.
I thank the Minister and his officials for accepting a number of amendments which were proposed to this comprehensive Bill. I welcome the Minister's decision to be present for almost the entire debate. It is right that we dealt with the Bill at such length in recent weeks because it is important. The amendments which were agreed and the contributions which were made by Members will add to the quality of the Bill. The establishment of policing committees, the ombudsman commission and the Garda inspectorate comprise a radical change to what we have been used to since 1924. As Senator Jim Walsh said, the legislation will mean that more respect is given to the force, which will be more visible. People in communities will have greater access to the Garda through policing committees and local representatives. I thank the Minister and his officials. I wish them the compliments of the season and a very good new year.
I welcome many aspects of this reforming legislation. I thank the Minister and his officials for taking on board many issues which were raised by Opposition Senators and their counterparts on the Government benches. I am pleased that some Opposition amendments were accepted and other amendments were tabled on foot of proposals made by Opposition Senators. The Seanad had a good debate on the various provisions of the Bill, which was given a good hearing in the House. I thank the Minister and his officials for their work on this Bill. I thank the staff of the House, including the Clerk of the Seanad and those who report the debates, for their work during the year.
I expressed my concerns about security officers when the Minister of State was present in place of the Minister. I may have over-stated my worries in that regard, but I am concerned that complaints procedures have not been put in place in respect of the new types of officers, who will have significant powers, which are being introduced in this Bill. The rest of the Bill underpins the accountability of the Garda, but no such provisions are being introduced in respect of security officers. The Minister of State said that similar personnel are employed by airports and supermarkets, but I do not think it is a fair comparison because the security officers who will be employed under the Bill will be given State powers and legal backing. Gardaí rarely search people in the National Gallery or the Houses of the Oireachtas, but the new officers may use their powers of search often.
Yes.
Differences of opinion could arise when one is considering whether the officers are using their powers correctly. There is a significant potential for litigation, which is the opposite to what Senator Jim Walsh said. This provision could lead to more litigation because there is no complaints procedure. Most people prefer not to go to court if they can avoid it. The lack of a complaints procedure in respect of recognised statutory officials is a flaw in the Bill. I welcome the legislation, other than that. I extend best wishes to the Minister and all Senators for the Christmas season.
There was a time when I hoped I would not see another cop in my life, because I had spent five years examining police forces in various places. I welcome the Bill, however. I congratulate the Minister on tackling this enormous task with great energy and vision. The passage of the Bill has been marked by his willingness to engage in sensible debate and his openness to the suggestions made by Senators. Legislation such as this represents a very important development in a democratic society and it represents or at least reflects the importance of policing.
All we have now are words on paper; the important thing is implementation. I know the Minister will push for it. Sometimes people do not realise the importance of training and the resources needed therefor and I join other Senators in stating that the necessary resources should be made available to the Minister.
The training and recruitment of gardaí stands comparison with recruitment and training of police officers anywhere else in the world. The Minister's problem may be the training of people other than new recruits to the Garda. One of the most demoralising things is for a young, enthusiastic recruit to come out of the depot and go back into a station only to be met by hoary headed old people who say, "That is all right son, that is for the books." In changing attitudes, particularly to community policing, and dealing with policing committees, considerable retraining is necessary. I recommend this to the Minister and hope he is given the necessary resources. I congratulate him and his officials on the Bill and wish them well.
On behalf of the House, I thank the Minister for the attention he has paid to the House in its discussion of this Bill. We have had three debates on Second Stage and five on Committee Stage. I acknowledge not only the highly intellectual content of the debate but also the gusto with which the Minister approached it. I thank the officials, who were always here on time and who were very attentive. The Minister has done the Seanad proud and it is proud of him.
I am very grateful to the Members for their kind remarks and I am sure my officials share my sense of gratitude. This process started shortly after my appointment as Minister and has obviously not yet concluded. The scope of this legislation only became apparent to us months into the process. Two teams were working on different aspects of it and these were eventually united under one set of officials.
When one examines the process that has led us to our current position, one will realise that I attached very considerable importance to the legislation and therefore decided to publish the heads of the Bill before sending it to the parliamentary draftsman to put into its proper shape and form. I also decided to initiate a public debate which was quite hot and furious in respect of some aspects of the legislation.
We also received input from the representative associations, including considerable input from the Human Rights Commission, and members of the local authorities, all of which influenced the way in which the Bill has mutated in the legislative process. Without prejudging what will happen in the other House, I can say that I am very happy with the substance of the Bill. It is balanced and has material that meets the standard that most people would have set for this kind of reforming legislation.
The Bill is of such importance that it warranted the time the Seanad allowed to consider it. I have said on occasion that I do not imagine I will be considering any legislation of much greater importance. It required immense thought and reflective debate. Bearing in mind that we have a bicameral Parliament, it is great to enter this Chamber and have a less-combative and more reflective debate than one might have in the other House. I thank the Members of the House for allowing sufficient time to debate this Bill and adequate time between its various Stages. It was a pleasure to hear all the improvements suggested by Members on both sides of the House and to incorporate some of them into the Bill. I wish the Cathaoirleach and all the officials of the House, both on-stage and off-stage, and the Leader and her officials a very happy Christmas, a happy new year and a well-earned rest from what has been a very onerous legislative term. In one sense, I regret that I add to the Members' difficulties by bringing legislation before this House, but the people are the better for it.
