The Minister has already spoken on the subject matter of the amendments in group 7.
Garda Síochána Bill 2004 [Seanad Bill amended by the Dáil]: Report Stage (Resumed) and Final Stage.
I am glad the statutory review suggested by my colleague, Deputy Jim O'Keeffe, in the other House has been accepted. As the Minister stated, it makes sense to have such a review in place.
I am not convinced that the professional standards unit proposed by the Minister will go far enough to address the concerns outlined by Mr. Justice Morris. It is not sufficiently transparent and independent as envisaged by him. There is a definite need to promote a positive image of the force and the unit outlined in the legislation does not go far enough in that regard.
Amendment No. 35, which deals with the three year review, is welcome. The professional standards unit is welcome in itself but as Senator Cummins said, it does not go far enough. If we want a review, it should be an independent review. We are still perpetuating the practice of the gardaí reviewing their own performance. There is nothing wrong with that. It is welcome that people would review their own performance but an independent review would be much better.
I welcome the Minister's statement when speaking on these amendments that he would consider the Labour Party's idea of a commission to review policing as a whole. I hope he does that in the near future. We need to examine statistics, performance indicators and so on. Many bodies carry out that type of internal review but the Garda Síochána, which is involved in detecting crime as well as all the other various functions gardaí perform, must be independently reviewed. The ideal way to do that, from the Labour Party's point of view, would be an independent policing authority which could initiate such reviews. Such an independent body could monitor the performance of gardaí in addition to the Garda doing that also. The Police Service of Northern Ireland carries out its own reviews but a review is also done by the independent policing board.
Amendments Nos. 56 and 63 are welcome in that they remove certain functions from the Garda Commissioner and give them to the Minister. That is probably welcome in terms of accountability but it would be better if that type of exercise were done by an independent policing authority, with an overview by the Minister. It is still centralised Executive control whereas many sound commentators, including Denis Bradley when he attended the joint Oireachtas committee, argue that we must remove the Executive control and put in place an independent body that would be between the Minister and the Garda. Such a body could do many of the functions the Minister is providing for in this legislation. There is no major issue in the amendments, which are generally welcome, but they do not go far enough in terms of reforming the Garda structures.
I welcome certain aspects of the amendments before us but the question of a review of the effectiveness of management, the deployment of resources and so on is a matter for the Commissioner. To refer back to the hearings we had on the Dublin-Monaghan bombings, having read the Morris tribunal report it was a case of déjà vu. Many shortcomings were identified in the Barron report and by the sub-committee which led to a commission of investigation being established to examine various issues but we must await the outcome of that investigation before reaching definitive conclusions. There was sufficient information in it, however, for us to be concerned about weaknesses in procedures and so on. There was a gap of 20 years between the two occurrences, the one on which Mr. Justice Barron reported and the one on which Mr. Justice Morris reported.
I have said previously regarding the debate on the Morris tribunal that the fact that an internal grouping is doing an analysis and reporting to the Minister on a three year basis is welcome but what is needed at this stage is a root and branch analysis of the strength and weaknesses of management and of the structures and procedures within the Garda Síochána. That would be positive and healthy. The inspectorate could play a role in that process and I urge the Minister to take a close look at the matter. When all the Morris reports have been published, the case for that may be even stronger than at present. This measure is a major improvement when compared to its absence in the past.
Self-analysis is healthy in that it would encourage the Garda Commissioner and his senior officers to focus on the absolute effectiveness of the management systems in place. Obviously, the necessity to report on a three-year basis to the Minister will ensure the analysis is fairly thorough. However, it is often the case that the Garda Síochána, like other public bodies and most people — it is a personal characteristic — tends to be defensive rather than self-critical when writing reports. What is needed is a critical appraisal of the quality and effectiveness of the management structures in place. Often, such an appraisal will not come from an internal review.
I was minded of this when the Joint Committee on Justice, Equality, Defence and Women's Rights had senior gardaí before it in regard to the Dublin and Monaghan bombings. I would have been encouraged if there had been an acknowledgement of the deficiencies at the time of the bombings but that did not happen. To some extent, those deficiencies were excused. I was concerned by this and retain those concerns.
With regard to the professional standards unit and the reports, the Minister should examine whether some overall independent body, perhaps arising from the Morris tribunal report, is required or would be beneficial at this stage. I am mindful of a comment by Mr. Justice Morris in his report that given the situation which was the subject of his tribunal investigations, he did not believe the deficiencies were a Donegal blip. He pointed out that gardaí came to Donegal from other areas and that the situation there would be reasonably indicative of possible failings elsewhere. I am sure the Minister, more than any of us, wants to see that rectified as soon as possible.
I am grateful to the Senators for their contributions on this issue. Frankly, I have sympathy with all the views expressed because root and branch change is needed in the way in which the Garda Síochána is run. A Bill does not bring about root and branch change by itself. That process must follow in the wake of the Bill and will require a considerable degree of commitment from the Garda Síochána.
An important point is that in the wake of the Morris tribunal report I do not want the members of the Garda Síochána to lapse into passivism or passivity in regard to all these issues, or to ask: "What are they going to do to us next? Who will be appointed from the outside to do this, that and the other to us?" I want to encourage them to face up to the challenge that this new situation creates. For example, I could have located the professional standards unit in my Department but, in that event, it would be another body that would visit the Garda Síochána and act on its members from the outside.
It is important gardaí take ownership, at least in part, of the process of change. They have very serious issues to deal with. However, I would not like gardaí in the Phoenix Park to feel they are in some fortress and that agencies keep descending on them, telling them this and that new idea from the outside. If the Garda Síochána is to undergo change — I am very confident Garda Commissioner Conroy shares my view on this — I want its members to play a constructive part in that change, not to see it resentfully as the backwash of Donegal or to believe that all these things happen to them rather than being done by them.
I want to strike a balance, with an independent inspectorate looking in from outside and with the internal audit unit now being appointed by the Minister. I do not want every single mechanism in the new package to be external to the force. It must have responsibility in some of these areas.
To turn to Senator Tuffy's point on an external review of the Garda Síochána, I share the view that it will be necessary to have a broad review of where policing in Ireland is going. However, I could not accept the Labour Party Private Members' motion in the Dáil which effectively stated I should put everything on hold for 18 months before coming back to the Bill. The need for reform in the Garda Síochána is immediate, as is the need for an ombudsman service.
If there is an incident the day after tomorrow in which somebody is injured or killed by gardaí, do we want an ombudsman service as an automatic response to investigate that incident in the coming weeks or whenever we get the service up and running, or will we postpone it for 18 months and have worse events happen in the meantime? From a frankly political perspective, how would my position be sustainable if I suggested another 18 months were to elapse because I wanted to think in broad terms about this issue yet again, some two years after the heads of the Bill were published for consultation? Would the public accept it was reasonable to suggest the process of reform was to be extended to three and a half or four years? I do not think so. It would not be sustainable.
A point that should go on the record of the House is that I expect the next modules of the Morris tribunal will produce even worse news. What am I to do about that? Should I sit and wait passively for worse news to arrive or set about the process of reform now? I reiterate that if something is missing from this package, we will discover it. These measures are not the Ten Commandments; they are not there for all time. However, they are intended to get the process running, at least on all of the areas of reform I can identify as necessary. If some serious issue which requires change is missed by the Bill, I would be happy to make further changes to the package. There is no reason to postpone the process of change.
Senator Maurice Hayes made a good point in his contribution to the debate and in a letter he sent to me. He stated that the wind is now in the sails of reform and we should not let it evaporate.
The Minister should have let the Bill go through Committee Stage in the other House. We would have had an opportunity to discuss and amend what is before us.
The Minister without interruption.
I would like to agree with Senator Cummins. However, I never saw such sustained time-wasting and deliberate kicking around of the ball in one's own penalty area as happened in the other House. The Senator was not there but I was. The difference between this House and the Lower House is remarkable when it comes to adversarial politics. The willingness of Members to take vote after vote on the timing arrangements and then chew up the time, to reject extra hours when they were offered, to have a half hour debate on the alphabetical order of the definitions in the first section-——
It has prevented us from going through the Bill.
All of those things made it very clear to me that they were not interested in a line by line debate but in making sure the Bill did not become law this session. I know a filibuster when I see it. There is no guillotine in this House yet I am here. I am willing to spend until midnight in the House, any day of the week——
No matter what we say-——
——-as long as I am satisfied that a bona fide debate is taking place, in which Members are addressing the issues. However, I saw Members deliberately chew up and waste the time of the Dáil to delay the Bill and make it increasingly difficult for me to get it into law before the end of the session. That was the tactic and I was not going to go for it.
There is something glaringly wrong in what we have today. The Minister cannot accept it.
That concludes the discussion on the amendments in group 7. We will now discuss the amendments in group 8.
In chapter 9 of the second report of the Morris tribunal, the tribunal refers to the absence of structures for dealing with corruption at a most serious level. The tribunal also referred to the proposals of Garda headquarters to set up a body to which, on a confidential basis, difficulties and possible irregularities could be reported. The tribunal suggested this particular initiative should be seen as a means of removing corruption but pointed out that it should be supported and strengthened.
I referred earlier to my proposal for a professional standards unit. This is part of my effort to support Garda management in identifying new structures that would make it more difficult for such scandals of corruption as appeared in Donegal to reoccur in the future. This particular proposal was brought forward in light of the recommendation in the report of the Garda Commissioner following the publication of the first Morris tribunal report. I mentioned this earlier in the context of amendment No. 36, which provides for the establishment of a professional standards unit within the Garda Síochána on a statutory basis. In that same report, the question of anti-corruption and whistleblowing charters was also addressed. The report recommended that a whistleblowing charter should be introduced to provide a forum for the reporting of corruption and malpractice within the organisation.
In meetings between my officials and the Garda Representative Association on the Bill, the question of a whistleblowing charter was also discussed. This arose in the context of the association's request that members of the Garda Síochána should be able to avail of the services of the ombudsman commission for the purpose of making complaints about members of more senior rank. The association took the view that members would be very unlikely to make a complaint against a more senior officer using the internal grievance procedure as there would be concerns for the member's future career prospects within the force in the event of their complaint not being upheld. As an alternative to the ombudsman commission, the association suggested the establishment of a whistleblowing charter.
Throughout the debates in the Dáil, the Labour Party has also been very strong on the need for a whistleblowers charter within the force. I reflected on the matter and on the concerns expressed by the Garda Representative Association, which represents the most junior rank in the force and where concerns are most sensitive. Following the debate on Committee Stage in the Dáil, I decided to include a new provision in the Bill dealing with regulations relating to reporting corruption and malpractice in the Garda Síochána.
The details of how the charter will operate have yet to be worked out by Garda management and the Department. However, the inclusion of this provision in the Bill will ensure that the necessary arrangements are put in place at the earliest time possible. Determining how to implement this will be part of the programme of work that Senator Maurice Hayes's implementation committee will undertake.
It is important that considerable thought is put into this as people must have confidence that matters will be dealt with confidentially. It must also be a system that cannot be abused in an utterly malicious way. The exact tweaking of those two opposite considerations will require a good deal of thought.
This provision will be given priority by the Department and the implementation oversight group of Senator Maurice Hayes. We will come up with a decent arrangement to deal with problems and corruption that cannot be dealt with by an ordinary report or a grievance report. This will apply to any member of the force who believes there is something seriously wrong further up the pyramid or at his or her own level. Members of the force will not feel their careers are at risk by ventilating in an appropriate manner to someone in a position to do something about it, if the information shows there is corruption or malpractice in the force.
I am supportive of this proposal and I favour giving it a statutory basis. We could have attempted to proceed without a statutory basis but it is now a major item on the agenda because it is in statute form. This also pulls the rug from under someone who claims that the provision is contrary to the proper discipline of the force. If this measure did not have a statutory basis I can imagine someone arguing that it subverts the authority of the Garda Commissioner and that there is no implied authority for it in the Act. Now there is express authority for it.
Critics may ask to be shown exactly how this will work. Although I cannot demonstrate how, I am confident it will work and that the system will deliver to ordinary members of the Garda Síochána the proper means to blow the whistle on reasonable suspicion of corruption and malpractice.
This issue goes to the heart of the Morris tribunal report. I raised this matter in the House during the passage of this Bill, prior to the revelations in the second Morris tribunal report. The ordinary garda must have the opportunity to contact someone if he or she sees a superior doing something wrong. A garda should be able to contact the ombudsman at this stage. The Minister is referring to a different system, the whistleblower's charter. This may be the correct vehicle to deal with this but a garda should be able to go to the ombudsman.
Consider the case of corruption in Donegal. I am sure there are many decent, hard-working gardaí in Donegal. If an ombudsman or an independent body had been in place at the time they could have revealed what was happening. However, this could not happen as superiors were involved in this debacle. I welcome anything that will allow ordinary gardaí to air grievances about superiors but I cannot see why a garda cannot contact the ombudsman. Everyone else has the opportunity to do so. I think this is a step in the right direction and I will welcome the report from Senator Maurice Hayes's group when it appears. It will be an important part of the system and of this Bill. I look forward to the proposals when they become available.
The Minister has moved on the whistleblower's charter although it seems very convoluted. The simpler the process of a garda making a complaint against a superior, the better. Without this process we could have many other situations similar to what occurred in Donegal.
I share Senator Cummins's view that this measure is welcome. The Minister mentioned that the Labour Party raised this issue and I believe Senator Cummins raised the question of gardaí complaining to the ombudsman. He has made the same point again today.
Senator Cummins has pointed to a possible flaw in the provision. Although it gives statutory basis to the concept of whistleblowing, it is very indirect. While it allows for a charter and regulations to be drawn up, there is no explicit right for a garda to make a complaint or to report allegations of corruption. This amendment refers indirectly to the right but there is no explicit provision. I am not critical of the amendment but this area may need review because when the Minister looks at the regulations with the Garda Commissioner, the inspectorate and the ombudsman commission, he may have to consider the necessity for an explicit provision for a garda to make a complaint to the ombudsman commission, as Senator Cummins suggested.
I also want to make a political point. This sort of issue could have been teased out more if we had more time. If the Dáil had got the opportunity to debate these matters on Committee Stage, we would not have the problems the Minister identified in terms of how they were debated because the select committee would have had a different approach and debated the issues differently. In addition, I presumed the House would sit next week because we generally sit into the first week of July. There is no reason we could not have an extra week so that both Houses could examine the issue in more detail, particularly since the publication of the second Morris tribunal report.
I am not convinced by the Opposition arguments in this regard. If there is malpractice or corruption in the Garda Síochána, it is not for the ombudsman commission to resolve it. That is an issue that should be resolved by the force. It is important, however, that a garda who reports suspicions should not subsequently incur sanctions. There is a kind of omerta or sense of identity in any group or team. Inherent in our culture, probably because of our history, is the sense that we should not squeal on each other.
That is not always right.
I know it is not right. It is important that there would be healthy and receptive acceptance of any suspicions people might have and that these should be investigated. However, there should be no subsequent recrimination. Matters should be conducted in a way that does not lead to that type of culture creeping into the Garda. The force must deal with the issue. If a garda passed on suspicions and felt they were not being dealt with properly for some reason, he could take another course of action.
Not in Donegal. To where could the gardaí in Donegal have passed them on?
Senator Walsh, without interruption.
The Morris tribunal has dealt quite thoroughly with the Donegal issue and it is not for me or Senator Cummins to reinvestigate it. The deficiencies there and the findings and recommendations of the report have led and instigated this change to provide a format within the force to deal with such issues, which is welcome. I listened to some of the debate in the Dáil and as far as I am aware, there was unanimous support for this measure in the Bill. We should fully support it.
If we had said that one of the functions of the ombudsman commission was to entertain complaints by gardaí against other gardaí, the force would be mud-wrestled to the floor as an institution and would become an arbitrator and industrial relations kind of theatre of war. I do not want to go down that road. I want the commission to be one that deals with the public's complaints about gardaí.
There is provision in the ombudsman commission terms for it to investigate matters off its own bat. If material came to its intention that it believed to be within its remit, it could act on it. The Minister is also in a position to provide the commission with material and to ask it to investigate a matter. I did not want it to become the ordinary course of events that gardaí having rows with each other and arguments about whether somebody was dealt with appropriately would contact the ombudsman commission and invoke its aid. That would collapse the effectiveness of the commission. However, the representative association asked for that.
The representative association also asked that every complaint, no matter what, against a garda should be investigated by somebody who is not a garda. Does it believe I am about to establish a body 1,000 strong to deal with all complaints made by gardaí against gardaí and to provide that no complaint made to the ombudsman commission could be investigated by a member of the Garda? That is not practical. It is not the law in Northern Ireland and nor is it the practice in most countries that complaints being investigated by force members should not proceed.
Many prosecutions are brought against gardaí by gardaí. The notion that it is impossible for gardaí to deal fairly with other gardaí is untrue. Gardaí have been prosecuted for corruption, drunk driving, theft and other offences. Unfortunately, there are always a few people in a group of that size who infringe criminal law and the offenders are vigorously prosecuted in the majority of cases.
The situation in Donegal was different. It must be conceded, however, that the report of the assistant commissioner, Kevin Carty, recommended a raft of prosecutions, some against fellow members of the force. The situation is not unprecedented.
With regard to how this will work in practice, it is important that we build into the regulations a mechanism whereby a complaint can be made in confidence to somebody who will be a confidential barrier against it leaking to others, except where it becomes necessary for the identity of the complainant to come into focus. For example, in a case where the complainant is the key witness, if somebody confesses to the complainant that he has acted corruptly, the case will never be pressed home unless the complainant is willing to say the person told him he had done such and such. Otherwise, it cannot work.
There must be some degree of reassurance in these cases that where confidentiality is due, there is an element of the seal of the confessional about the matter. Likewise, we cannot allow a situation where a complainant can just say anything he or she likes because that would expose members of the Garda to appalling victimisation by anonymous informants who could act from motives of malice, competitiveness, jealousy, etc., or simple retribution; we cannot have an absolute in that way.
I now call the Minister to address the amendments in group 9.
Senators will recall that I brought forward an amendment in this House on Committee Stage which inserted a new subsection (2) into section 114. This amendment provided as follows: "Regulations under subsection (1)(i) shall include provision for the establishment of promotion boards comprising 3 members, one of whom (but not the chairperson) shall be a member of the Garda Síochána”. I decided to amend this provision further on Report Stage in the Dáil. I am now providing for the establishment of a panel of suitably qualified persons to be appointed by the Government from which the Minister will appoint the two non-Garda members of the promotion board, including the chairperson.
I said earlier in this debate that I have encountered on many occasions the wholly misguided notion that the Minister for Justice, Equality and Law Reform has some part to play in the process of promotion of members within the force. I want it to be very clear that the process is totally transparent and fully in accordance with regulations to be made under section 114. I also provided in amendment No. 123 that no person can be a member of the panel if he or she is, or ever has been a member of the Garda Síochána.
In the reports of the Morris tribunal, no recommendations were made as to how the matter of Garda promotions should be looked at in the future. However, the tribunal observed that "the system of promotion, in its experience, too often produces people who do not bring to the task the requisite level of enthusiasm, commitment and ability". That is a fairly hefty criticism of the system of promotion that exists at present. The tribunal suggested that this matter be examined by the Department, in consultation with the Garda Commissioner. While the tribunal did not make a specific recommendation in this regard, it is clear from the general thrust of a number of its recommendations that an Garda Síochána needs to look outside the force for new ideas and a fresh impetus on many fronts. I introduced amendments Nos. 123 and 124 for this reason.
An Garda Síochána will be well served by people with proven expertise in promotion techniques and succession planning within other organisations. The retention of a single representative of Garda management on promotion boards is sufficient to ensure that account is taken of the core requirements of the position in question and the "person specification" appropriate to that position. I have spoken to the Commissioner about the amendments I made in the Dáil in this regard. He has indicated that he has no difficulty with the provisions. It is obvious that it is useful, in many cases, to have a member of an Garda Síochána on a promotion board. Unlike outsiders, who may not have service experience, such a person can comment on the requirements of a position and the qualities which are necessary in the person filling it.
I have been contacted privately, for example during social occasions, by members of an Garda Síochána who believe that some groups within the force are on the inside track when promotions are being allocated. They do not allege that party political favouritism is displayed within the force when promotions are being decided. Just a few people hold that erroneous opinion. I am aware that there has always been a belief within the uniformed branch that detectives are on the inside track in respect of promotions. While I cannot make a useful comment on whether that perception is right or wrong, I want to make it clear that all members of an Garda Síochána are entitled to the psychological assurance that they will be assessed fairly, not by reference to some internal, unspoken, hidden or secret agenda or prejudice, when they put their names forward for promotion. That is what this set of proposals is all about.
It is obvious that people will argue that the Government is interfering in some way when it appoints promotion panels. They might suggest that the panel system is liable to abuse. We cannot extend the concept of transparency to a ridiculous length, however. There will be a sufficient level of transparency if, as I have proposed, the names of the persons who are placed on the promotion panel are the subject of public knowledge, debate and scrutiny. The regulations will provide that canvassing will, in effect, disqualify. Approaches which are made behind the scenes to either of the independent panellists or the Garda representative will be disclosed and discounted. We can deal with all such issues in a fair manner.
People are appointed to virtually every senior position in the Civil Service following an interview by a panel of outsiders, accompanied by a person from the Department who is expected to bring some reality to proceedings by giving an indication of the Department's view of the matter. Such a person is required to be present to ensure that applicants cannot get away with a complete bluff by misleading outsiders who have no idea what they are doing. Nobody has alleged that the system will be less fair because outsiders will be involved. This is a significant advance. We can ensure, by regulation, that any deficiencies which appear in the promotion process are remedied.
We need to ensure that the best people are doing the work of the Garda Síochána, as the Minister said. I agree with his comments about transparency and fairness, which are of paramount importance when promotions are being made within the force. We all want the best people to be promoted. I intended to make the point the Minister made about the promotion panels. People who are above reproach should be appointed to such boards. I agree that a member of the force should be on each panel to deal with practical issues and the requirements of the job. I hope canvassing will disqualify in the manner outlined by the Minister. Appointments are often made on the basis of who one knows, rather than what one knows. I agree with the thrust of the changes made as a consequence of amendments Nos. 123 and 124. We all want to get the best people for the job.
I would like to speak about amendment No. 123. Although I could be mistaken, I understand it introduces a new subsection (2) in this section of the Bill. The amendment refers to the following subsection as subsection (2) — the number does not seem to have been changed. Is that correct? I am making a technical point.
If the Senator had my copy of the Bill it would make more sense.
When amendments are made, the sections of the Bill are automatically renumbered. That is the way the system operates. The correct reference is to subsection (3).
So the version of the Bill we have in front of us is technically incorrect.
It is not.
It is not incorrect. It is done by reference to the original Seanad Bill. It becomes more complicated for one to follow the process if one does not have a copy of the Bill, as passed by the Dáil.
Okay, I did not notice something that nobody else had seen. It is obvious that amendment No. 123 makes a change by clarifying that the two non-Garda appointees to a promotion panel cannot be or have been members of the Garda Síochána. Amendment No. 124 alters the wording of this section of the Bill slightly, but it does not make much of a difference to the existing provisions. It states that the two non-Garda appointees should be "suitably qualified persons appointed to the panel by the Government". That is something that could have been referred to in the regulations anyway. It does not make a major change to what was already in the legislation.
I would like to make a general point about the section of the Bill being amended by these amendments. Senator Maurice Hayes made a point about the training of gardaí when the Minister of State, Deputy Brian Lenihan, was in the House. He asked why gardaí cannot be trained alongside trainee social workers and other professionals. That point was also made by other commentators, such as Professor Dermot Walsh, who said that one way to tackle the inward-looking culture in the force would be to train gardaí outside Templemore, for example in universities.
The Minister, who made a comment about this matter when it was raised the other day, needs to listen to people like Senator Maurice Hayes and Professor Dermot Walsh, who know a great deal about this area. Their argument makes a great deal of sense. I read the Minister's comment about trainee gardaí sitting around on beanbags, but that is not what has been suggested. It might be no harm for them to engage in a small amount of such activity. If trainee gardaí discuss issues with people who are studying other disciplines, they might get a broader perspective on the role of the force. UCD has initiated the "horizons" programme, under which people studying engineering, for example, can study alongside arts undergraduates, for example. It is a good thing to encourage people to have a broader outlook on their professional activities. I hope the Minister will provide for such a change, which a brave independent police authority might have considered.
I do not want the Minister to take my remarks personally. I am a very straight and direct person. I really think we are missing an opportunity by failing to establish an independent police authority. I can give many examples of cases in which such an authority would have been of use. As someone who is completely supportive of departmental officials, I do not think the advisers and policy-makers in the Department of Justice, Equality and Law Reform act in an executive manner by taking action and making changes. We are missing an opportunity to set up a police authority.
Like Senator Tuffy, I said recently that the Garda training depot in Templemore is too remote. I attended a conference recently in a hotel in north Tipperary and the Garda had to hire rooms to teach gardaí because there is not sufficient accommodation for them. It would be much healthier if gardaí studied with other groups in colleges and universities. With all due respect, they forget that the public are the customers. There is a little bit of arrogance involved. In other countries in Europe, they look like they are on the job, so to speak. I do not want to say much more than that because I might get into trouble. Garda recruits should be in mainstream education because their present education system is old-fashioned.
We are all optimistic about the increase in numbers to which the Minister referred last night. I said to him at a conference in Dundalk that I want to be free from fear of being attacked. As I have got to know the Minister's constituents in Dublin South-East, one of the great fears of old people in the area is being alone at night. I was shocked to learn that community gardaí, who do great work in the community, must retire at the age of 57. The Minister is talking about recruiting new people and promotions.
We have strayed a long way from Garda promotions.
The Senator is moving away from the amendments in group 9.
I would like the Minister to let me know about this aspect. If we had an independent police authority, it would be recommending that we hold on to good people aged 57. Why should a young sergeant have to retire at 57 and why should a young superintendent have to retire at 60? I just learned of this last week, and I never heard such nonsense. It is so archaic that people who are healthy and dedicated to their job should have to retire. If a semi-State organisation had its own authority it could make changes as it goes along. I am sorry to have to say so, but Departments do not make changes in this way. They do not react quickly to changes in society. I have the highest regard and respect for public servants, but they are not able to make quick changes. Why does a sergeant have to retire at 57 years of age in this day and age?
I agree with much of what Senator White said but it does not refer to the amendments in group 9.
That is obvious. I just want to ask the Minister a couple of questions and I would like to get a straight answer. Where is the common sense in making a sergeant retire at the age of 57 if he or she is doing a great job in the community? When I was told this in Kevin Street station last week, I could not believe it, and I said I would ask the Minister.
This board is a key factor in the effective running of the Garda Síochána. If one promotes good people with the necessary skills to do the job, the factors that must be addressed will be overcome. The Morris tribunal highlights a litany of poor management. I was recounting to the Minister last night that my wife visited a friend recently. Her friend's husband spent his career in the Garda Síochána. He said everything I had been saying about the gardaí, namely, poor management has given rise to many of these problems and gardaí are not living in the locality. Obviously he served at a time when gardaí lived in their locality. I do not know how this aspect can be tackled. I know people have a fundamental right to live where they wish, and no one wants to interfere with that. However, if some positive incentives were introduced, it would be beneficial to the overall operation of the Garda.
The Boston police commissioner, Kathleen O'Toole, said that good cops do not necessarily make good managers because different skills are required. I noted that comment because it is quite perceptive and true. There needs to be criteria for promotion. I welcome that people from outside will be involved, which is essential. The criteria for promotion should be examined closely.
I am pleased the Minister mentioned the Local Appointments Commission, which is made up of people within the public service and is seriously flawed. I discussed the issue recently with people in other positions who would use more pejorative language in that regard. While there is no political interference, and probably not much canvassing going on, the commission is seriously influenced by the county managers' association. There is a resonance in what some gardaí say, namely, that good people have been passed over, while people who are on the inside track have got through. Unfortunately, people on interview boards tend to be influenced by people they like or whatever. However, it is fundamental in the Garda or any other business to get the right people into the right positions. There are currently many round pegs in square holes in local government, which is a monument to the "old boys" network.
I say this because it is imperative this does not happen here. The Minister must put in place safeguards to avoid this happening. If he wants to substantiate what I am saying, he should speak to his colleague, the Minister in charge of that area. Anyone who has gone through the local government system would not have failed to notice what is going on. The system needs to be overhauled radically.
I have noticed in the public service that promotions boards are very much interview-driven. There have been examples of people who interview very well but may not have the skills to deliver on the job and responsibility they are given subsequently. Equally, there are people who would be well equipped to do the job but, because of their temperament or whatever, they do not perform well at interviews. The interview process is an important component of selecting people but there must be other ways of doing the assessment.
To some extent, an analogy could be drawn with examinations, where the discussion evolves around people studying hard for examinations and getting points on that basis. Other criteria need to be added to the melting pot to assess people's attributes and capabilities. The only sensible suggestion I can make is that the promotions board should be made subject to the inspectorate, from the point of view of the inspectorate having a specific remit to periodically examine if the promotions board is being unduly influenced by people who for one reason or another may have an interest in it. This is an area that needs to be examined.
In regard to members of the Garda Síochána, we are in danger in this House of operating on the basis of outdated stereotypes. One of the great pleasures of my job is to visit Templemore to see the passing out parades. The notion that these are young farmers' lads, with the leaving certificate sticking out of their breast pocket, who have no experience of the broad wide world, which may have been correct at one stage, is no longer the case in Templemore. Nowadays the majority of them, or at least a large number, are third level graduates. There is a notion, dating back to when the Garda Síochána was male dominated, that strapping farmers' sons enter the force without any experience of the world other than the preparatory course to get into Templemore. I assure the House that the diametric opposite is the truth now. Senators should see the citations and experience of those who are there now. The breadth of their experience amazes me. Some are former accountants and secondary teachers. People are coming into the force now who have third level qualifications right across the board. Some have engineering degrees. It is regarded as a good job that is much sought after.
It is well paid.
It is well paid.
The notion that the education of gardaí involves a group of people, who have no experience of the broader world and no other education, attending a kind of monastery in Templemore is not true any more. Anybody who wants to leave their prejudices aside should go to Templemore to learn the truth because the situation is radically different from the picture being portrayed of young gardaí as inexperienced introverts being inducted into some monastic order in a former barracks. Nothing could be further from the truth. In the course of their training they spend a considerable amount of time on the streets with community gardaí getting involved in social projects and gaining a broader view of the world. The training is not an intensive programme that cuts them off from the world. It is important to stress these points as we are in danger of debating this on the basis of an impression formed 15 or 20 years ago.
It was as big an eye-opener for me to see in Templemore the type of people becoming gardaí now, and to realise how wrong that stereotype was, as it would be to anybody else. A huge number, I believe a majority, have third level experience of some sort and have sat on bean bags with social science students discussing their philosophy of life. It is not the case that they are raw recruits with no view of the world outside what they learn in Templemore.
Senator White mentioned that she has been out and about in Dublin South-East and I wish her well in her campaign to become the Fianna Fáil nominee in the next general election.
There is huge competition.
Yes, there is.
We cannot discuss the next election at this point.
I am rooting for the Senator.
I hope it is based on ability.
I hope there is a good promotion system in place.
It surprises me that Senator White objects to the retirement age of 57. This has been debated for many years and there are two sides to the argument. It is easy to ask why somebody should be let go at 57 when he or she is doing a good job. On the other hand, do we want people between 57 and 60 who, getting on in years, are not in a position to hop over walls and chase burglars? I am 54 and I would not be happy jumping over eight foot walls.
If the Senator were a female member of the Garda Síochána I would not like to see her scaling walls either, although I am sure she is younger than me.
It would help make up the extra 2,000 gardaí.
Members of the Garda Síochána are entitled to a full pension after 30 years service, although this is changing for new recruits. That is a substantial property right accorded to them. Not everybody can retire after 30 years and receive half their salary, inflation-proofed for the rest of their existence.
It is a matter of choice.
I agree with Senator Jim Walsh that it is desirable that gardaí live in the communities they police. I cannot, however, force any garda to do that. I cannot force a garda policing Donnybrook to live in Donnybrook, or one policing Ringsend to live in Ringsend. I can, however, encourage reservists to enlist so that there are members of the broader force in every community. For the information of Senator White, people who reach the age of 57 or who retire a few years earlier should be entitled to become reservists so their experience is not thrown away and their links with the force are maintained. It is a practical solution.
A private business could not afford that.
If there were a system whereby everybody could serve until they were 60 or 65 it would only be for members who were still firing on all cylinders from a fitness point of view so that they could take on the onerous duties of gardaí. If a selection system were introduced it would give rise to significant industrial relations problems because the process would be open to charges of favouritism, as some were selected and others deemed to be past it, so to speak.
I ask the Minister to speak on group 10, amendment No. 25.
This amendment arises out of a key recommendation of the second report of the Morris tribunal. In essence the amendment inserts a new section 14 in the Bill, which in subsection (1) governs the appointment, subject to appropriate regulations, by the Garda Commissioner of persons to the rank of garda, sergeant and inspector respectively.
Subsection (2) is more or less the same as that in section 13(2) as passed by the Seanad.
The rest of the section, dealing with a new summary power of dismissal of such members by the Garda Síochána, is new. This part of the amendment will enable the Garda Commissioner to dismiss a member of the force where the Commissioner has lost confidence in the capacity of that member to discharge his or her duty and where the dismissal is considered necessary to maintain public confidence in the force. The member in question will be informed of the reasons for the Commissioner's opinion and given the opportunity to argue against dismissal. The consent of the Minister will be necessary before the Commissioner actually dismisses the member.
The strength of this power has caused controversy. It provides for exactly the same situation that exists for senior officers. I cannot allow a situation where, if a sergeant and a superintendent or chief superintendent are, for example, engaged in corruption together, for which there is precedent, one of them can be dismissed by the Government but the other can go on sick leave and demand a tribunal of inquiry or appeal his dismissal and take the case to court. If, in the rare cases where it is necessary, a senior officer must leave to maintain public confidence in the force then the same should apply to lower ranks. What is sauce for the goose is sauce for the gander. It will not become the norm because it is not a substitute for the disciplinary process. However, members whose continued presence in the force causes public outcry and debate cannot remain in it. There is no reason the position of members of lower rank should be stronger than that of higher rank.
The new power of dismissal will be separate and distinct from the disciplinary regulations, which will continue to apply in cases of specific allegations of misconduct. It is analogous to the existing broad power of the Government to dismiss a member of superintendent rank or higher where it has lost confidence in the member. The extension of this power to the Garda Commissioner in respect of less senior ranks is a significant change in the overall structure of the force. Essentially, therefore, the provision will enable the Commissioner to dismiss members of the ranks named in broadly the same way the Government can dismiss members of more senior rank using its powers under section 10(4) of the Police Forces Amalgamation Act 1925.
Currently, the Commissioner has no equivalent power and a dismissal can only come about after a full disciplinary inquiry and, in all likelihood, an appeal. The only exception to this is regulation 40 of the Garda's disciplinary code, which provides that, in certain circumstances, the Commissioner can, with the consent of the Minister for Justice, Equality and Law Reform, dismiss a garda, sergeant or inspector without the need for a disciplinary inquiry provided the Commissioner is in no doubt the dismissal is merited and the holding of an inquiry could not affect his or her decision.
While regulation 40 provides for accelerated dismissal, it is part of the disciplinary process and has limited application. The purpose of the new provision is to enable the Commissioner to act outside of the disciplinary regulations in circumstances where he or she no longer has confidence in the capacity of the member to discharge his or her duties and where dismissal is necessary to maintain public confidence in the force. I have received extensive advices regarding this power from the Attorney General and the section has been drafted strictly in accordance with them.
This is a strong section. Dismissal will occur if a member undermines public confidence, which is subjective. Who defines "public confidence"? Summary dismissal should be the last resort and all disciplinary procedures should be exhausted before it takes place. I agree with the Minister that what is sauce for the goose is sauce for the gander but dismissal must be handled delicately. The section cannot be used as a big stick to sack a member because of X, Y and Z and, therefore, proper reasons must be given. Powers of dismissal should be provided but I am concerned that the powers envisaged are over the top.
The section is strong of necessity. The ultimate sanction of dismissal must be available in both public and private employment. Labour and employment legislation contains safeguards against travesties of justice.
Natural justice dictates that a member facing dismissal should have the right of representation when he or she makes his or her case. The member must be informed of the basis for the Commissioner's opinion and he then has the right to respond. Can he respond orally or can he only respond in writing? The Commissioner is only one person. Normally employees have the right to appeal to a third party when facing dismissal.
The Garda is a structured force. Ultimately, the Commissioner is responsible and accountable for what happens within the force and, therefore, he must have powers such as this. Will an appeals system be provided? I acknowledge the Government's consent to the member's dismissal is required but I cannot envisage a scenario where the Commissioner would make a decision to dismiss a member only to be overruled by the Government. That would be tantamount to a resigning matter for the Commissioner because it would be an implicit statement of no confidence in the decision. It would be difficult for him unless a vexatious reason were provided.
It is highly undesirable to impose the ultimate sanction of dismissal. The section addresses the appointment of members by the Garda Commissioner to senior positions. However, the Garda does not provide ongoing training or refresher courses for members, especially those in management positions. Recently, I was part of a delegation which visited the London Metropolitan Police and the Boston police. We were impressed by much of what we heard and much of this information could provide the content for Garda training seminars. Members of those forces could be invited to such seminars so that information is disseminated throughout the force and not only senior management. Refresher courses on management skills could be provided using members of other forces to give seminars.
Complaints and tribunals should not occur because of the failure to retain files and records properly. That is an elementary function of a police force. Such seminars and courses could be usefully introduced into the system. I appreciate that can be done without legislation through the regular interaction between the Department and the force. Many well qualified and well educated people are being recruited by the Garda. Commissioner O'Toole in Boston said the force's system operated on a seniority basis but the force was trying to identity younger members with the necessary management skills to promote them so that they can implement their ideas when they have the energy and drive to do so rather than holding them back because of the seniority track. This should be examined by the Garda and other police forces.
I recognise the need for such a provision but I am concerned that it could be heavy handed. The Minister stated he received advice from the Attorney General that it is in order. I wonder whether fair procedures will be followed through the use of such a provision. The type of hearing provided under standard disciplinary procedures is not provided for. Can somebody speak on behalf of a member whom it is proposed to dismiss? There is no provision for appeal. The Minister points out that the Government has control over more senior positions such as the Garda Commissioner, who can be dismissed, but that is different because those people are Government appointees. A person of the rank provided for here goes through different public service procedures to be appointed. The comparison cannot be made. These people are not appointed by the Government.
The Government appointment process is more transparent and accountable. Under the legislation the Government can decide to dismiss a person of a particular rank but it must account for this to the Dáil and the Seanad. Section 14(2)(d) refers to an indirect accountability. The Government must to an extent trust the opinion of the Garda Commissioner.
Senator Jim Walsh made a general point about the promotional ladder in the force but Senator White referred to members retiring at the age of 57. That will have to be reviewed because retirement age will be reviewed in every other profession. We cannot start to discuss abolishing compulsory retirement in other areas and not look at this provision.
The Minister brought ageism into the discussion. While he is not malicious he referred to the physical attributes of a 57 year old. A 40 year old might not be able to jump over walls but a 57 year old might. When one removes people from any job at a particular age one loses wisdom and experience.
This power will be used sparingly but it is wrong that a senior officer of the Garda Síochána can be removed on grounds of loss of confidence while somebody junior to him or her, and guilty of the same conduct, is excused from a summary dismissal and goes through a lengthy process. There are three limits to this power, namely the individual's conduct triggers it — this is not a matter of public perception or three bad newspaper editorials that shook public confidence; the conduct must be of a kind that undermines public confidence in the force and the dismissal must be necessary to maintain public confidence. These are not trifling conditions.
This power can be exercised only in a constitutional manner. Whatever the Constitution requires must be done. Likewise, it can be exercised only in compliance with the European Convention on Human Rights. If the convention provides for anything over and above the requirements of the Constitution that too is implicit in this power.
This requires the Government's consent. Senator Jim Walsh asked if the Garda Commissioner went through this process and the Government disagreed, whether that would be a resigning matter for the Commissioner. I hope and assume the Commissioner would not do something lightly but that does not mean the Government would be embarrassed in refusing to give its consent if it doubted the wisdom of the Commissioner's decision. The Government's role is not that of a rubber stamp; it would give this the same kind of consideration it would give to a proposal by the Minister for Justice, Equality and Law Reform that a particular superintendent be removed.
The Government acts as the final arbiter in the matter by reference to constitutional values and with the Attorney General sitting at the Cabinet table. This is not a case of the secretary to the Government ticking a box and dismissing a person. It is quite the reverse; this would be a serious process requiring a decision of the Cabinet, informed by legal advice, in the presence of the Attorney General.
The courts would ensure that any deviation from what was fair or necessary in the circumstances would be available if there was any such deviation. This is not a gung-ho provision. It merely puts everyone in the Garda Síochána on a level playing field with more senior officers and as such it is a desirable change.
I am not engaging in ageism. There is a package here, part of which is that after 30 years service one walks away with a full pension entitlement. If one joins the Garda Síochána at the age of 21, by the age of 51 one has the right to leave with half of one's salary for life and a large gratuity. That is a generous deal which is not open to secondary school teachers, nurses or many others. The quid pro quo is that the Government by regulation, not statute, provides the retirement age for gardaí.
Several times since becoming Minister I have considered the point Senator White raised. It is a perennial issue. I have discussed it with two commissioners and officials in my Department. If I were to raise the age from 57 to 60——
The Minister dealt with that point in a previous group. He should stick to the issue of summary power of dismissal.
——it would be wrong and if I were to introduce a selective system it would be open to abuse. There are many people in their 50s who regard the age limit of 57 as opening up promotional opportunities that might disappear if we changed that.
I ask the Minister to address the 11th group of amendments, regarding appointment of gardaí from other jurisdictions.
The 11th group of amendments consists of amendments Nos. 121 and 122. In its second report the Morris tribunal referred to the plan being implemented by Garda management to strengthen the Garda internal audit section and noted it was a matter of worry that the internal audit section had not been strengthened by the presence of officers from outside police forces.
The tribunal acknowledged it would be reasonable to argue that those who do not have an intimate working knowledge of the Garda Síochána would be unlikely to know where internal problems can arise and where embarrassing details, lies and controversies can best be hidden. Nonetheless, its investigators found that a combination that works well is that of experienced Garda personnel and those with service at commander level in a foreign police force. The tribunal added the Garda Síochána needs a combination of experience, dynamism and honesty which is best achieved through allowing a combination of a fresh approach from outside the force and internal experience based on a long service to synergise.
The Bill provides for the appointment and secondment to superintendent rank and higher of members of the PSNI to the Garda Síochána, and the secondment to the PSNI of members of ranks not above inspector in the Garda Síochána. In these respects the Bill restates the provisions in the 2003 Act which implements the Patten report.
The tribunal observed that the transfer of personnel at garda, sergeant and inspector level is not provided for and referred to the various treaties of the European Union which promote the notion of the movement of goods and workers. While the tribunal acknowledged that this ideal must give way to practical problems where knowledge of local languages, conditions and problems is concerned, it took the view that it did not seem right that a person applying from an equivalent police force, with appropriate qualifications in language and expertise, from within the European Union, or from friendly countries such as Canada, needs to be inducted into the Garda Síochána trainee rank while at the same time losing significant salary and pension benefits by virtue of a desire to transfer to Ireland to serve the people of this country. While the tribunal acknowledged that the ideal must give way to practical problems where knowledge of local languages, conditions and problems is concerned, it took the view that it did not seem right that a person applying from an equivalent police force and with appropriate language qualifications and expertise from the EU or a friendly country such as Canada should be inducted into the Garda Síochána at trainee rank, while at the same time losing significant salary and pension benefits, by virtue of a desire to transfer to Ireland and serve the people of this country. The tribunal referred to the fresh infusions of energy and enthusiasm in young recruits almost yearly and stated that fresh ideas and personnel as well as fresh approaches to problems through the experiences of other police forces might usefully be introduced to the benefit of the Garda Síochána and those it serves.
The tribunal recommended the strengthening of the Garda internal audit section through the induction of officers of experience from Canada or an equivalent force or the revision of the Civil Service entry requirements to allow the transfer in appropriate cases of persons below the rank of superintendent and under appropriate conditions of service and retraining into the Garda Síochána from the EU or from friendly countries outside it. Further on, in chapter 9 of its report, under the heading of "ethnic diversity", the tribunal stated that the Garda Síochána should have more confidence in its ability to train and equip its recruits and actively seek its intake from a wider and more diverse ethnic and religious mix than at present.
This area was also brought up during debates in the Dáil, when the Fine Gael spokesman on justice asked why the Bill was limiting the appointment and secondment arrangements to members of the Police Service of Northern Ireland. Many of the points raised by Deputy Jim O'Keeffe echoed those of the tribunal. I undertook to re-examine the provisions. Having done so and in light of the Morris tribunal observations and recommendations in this area, I have tabled amendments Nos. 121 and 122. The former provides for the recruitment by the Garda Síochána of members from police services of other states and members with diverse ethnic or national origins or different religious beliefs and backgrounds. Amendment No. 122 provides for the secondment of members of other police forces to the Garda Síochána.
The suggestions and proposals are sensible and strengthen the Bill. We must respond to the major changes in society that we have witnessed in recent years, and this goes some way towards achieving that goal. Regarding members on secondment from other police forces, the Minister is right that we must have people with dynamism and fresh ideas and approaches to dealing with matters. I fully support this section.
I too support this section, with which I have no problems. Regarding a similar provision in the legislation for the secondment of members of police services outside the State to assist the ombudsman commission, I made inquiries with the Police Ombudsman for Northern Ireland and was told that she did not use members of the PSNI to carry out her work. She uses only members of other police forces. Our legislation provides that we may use members of the Garda Síochána, allowing them to be seconded to the ombudsman commission. That should be reviewed since, as much as possible, we should ensure that the ombudsman commission does not use members of the Garda Síochána to carry out its work. They should come from other police forces, since that is best practice. I know it is related only indirectly to this amendment, but I felt this was the best juncture at which to make that point.
I welcome these provisions, in particular the ethnic diversity to which the Minister referred and which is mentioned in this amendment. In that regard, there should be some sort of positive campaign to recruit people, particularly from our large eastern European population, along with those of Chinese or black backgrounds. We should now be thinking of recruiting from those groups. It establishes a connection with communities once they see people involved in the police. It would be good for the integration of those people, who are coming in and will be part of Ireland in the future.
I fully echo what Senator Jim Walsh has just said. I intend to fast-track the ethnic diversification of the Garda Síochána, since we know that in Britain youths from racial minorities in particular saw a police force in the 1950s and 1960s which did not reflect their community at all. It indelibly marked the relationship between those minority communities and the force. Now is the time for us to be thinking about this rather than struggling to deal with it when many of the toddlers in prams from minority ethnic communities are young teenagers who see no echo of their own background in the police force that serves their community. I am very anxious that we fast-track that process now.
Perhaps the Minister might turn to group 12, concerning the searching of designated Garda stations.
By way of background information, I can inform Senators that section 91 is one of the most important in Part 3 of the Bill, dealing with the powers of the investigation staff or ombudsman commission to search Garda stations. It is a carefully worded provision in all respects, particularly in the case of certain Garda stations with sensitive material, written, tangible, or computer-based, relating to the State's security.
The Bill's provisions, as passed by this House, envisage that the regulations be drawn up with the approval of the Government by the Minister for Justice, Equality and Law Reform and the Garda Commissioner. They would specifically designate those Garda stations in which such material, in the form of information, documents or things, would be stored. If the ombudsman commission wished to search those stations, the Minister and the Commissioner would have to be notified, and a search could not proceed, except to the extent specified by the Minister under section 91(3) of the Bill. The Minister's decision in that respect would be subject to review by a designated judge of the High Court. In accordance with section 92 of the Bill, he or she would have the necessary powers relating to access and production of documents in that regard. He or she will make a report to the Taoiseach on the operation of the provisions, and the Taoiseach is obliged to ensure that a copy of the judge's report be laid before each House of the Oireachtas, subject only to the exclusion of any matter relating to the security of the State.
I emphasise that my objective is to keep to an absolute minimum those areas that are off-limits to ombudsman commission investigations. I took great care with the drafting of this provision to achieve a balance between the ombudsman commission's need for the fullest access possible and the requirements of State security. Unlike police forces in many other jurisdictions, the Garda Síochána, in addition to its normal policing functions, is also the security arm of the State. In the UK, that role is separate from the ordinary police force, being in the hands of MI5 and MI6, while in France the organisation is the sûreté. I have always maintained that such procedures are necessary in our case to protect sensitive intelligence sources, for example.
I considered possible alternative approaches, and my good friend, Senator Maurice Hayes, who is very familiar with this area, suggested that one way out of the problem would be to allow the ombudsman commission access to all areas, including those sensitive locations and material, and provide that the Minister for Justice, Equality and Law Reform might prevent the publication of any sensitive security-related material in any subsequent report. That would affect neither the conclusions nor recommendations in that report. Such a provision would operate in conjunction with the agreed protocols on such access drawn up between the Garda Commissioner and the ombudsman commission.
In the final analysis, however, I have decided to stick with the Bill's basic approach, but with some modifications. That is the purpose of the amendment that I tabled on Report Stage in the Dáil. I will return to that point. If, as Senator Tuffy maintains, the ombudsman is to use outsiders only in such instances, that creates a problem. Who are those outsiders who are to root through the deepest secrets of our State? No other security service anywhere in the world says that a group of outsiders may knock on the door and ask to see one's most secret files, including on IRA informers and touts in criminal gangs, where it relates to the security of the State. No other security service is subject to that provision.
I therefore decided to place a positive duty on the Minister of the day to issue directions specifying the part of the document storage facility or Garda station in question that may be searched. A new subsection (6) provides that any ministerial direction may contain such conditions or restrictions as considered necessary in the interests of the security of the State. I also took the opportunity of providing by way of amendment No. 130 that any abuse of the procedure by a member of the Garda Síochána regarding a search under section 99 of a document storage facility will be a serious disciplinary offence. That will also be inserted into the discipline regulations in very stark terms. Anyone trying to hide behind this argument regarding the security of the State in bad faith will commit a very serious offence. If the ombudsman commission makes a complaint in this regard, the Secretary General of the Department could, under the powers assigned to him or her in regard to the procurement of documents, adjudicate on the matter. There would be serious consequences for any garda, of whatever rank, who tries in bad faith to abuse this provision.
That is as much as I can do to address this issue without destroying the confidentiality of information relevant to State security. I have pared the provisions down so that they relate not to entire stations but to parts of a document storage facility, and have assigned a positive duty to the Minister to minimise the applicability of this section. This is balanced by the stipulation that anybody who tries to abuse this provision by storing information in an incorrect file or whatever will face the most condign treatment.
Amendment No. 129 is simply a draft amendment. I draw Members' attention to the fact that section 123, on page 82 of the draft as passed by the Dáil, contained a typographical error. The reference to section 100 in this section should be a reference to section 99. The Clerk of the Seanad has suggested that I should propose a correction along the following lines:
In accordance with Standing Order 121, I request the Cathaoirleach to instruct the Clerk to make a correction in the Bill as passed by the Dáil. The reference in line 30, page 82, to "section 100" should read "section 99".
I did not entirely understand the Minister's last point. Is the section in question technically incorrect?
It contains a typographical error.
The section is correct but there is a typographical error which must be corrected.
The existence of a typographical error means the section is not correct.
The error will be corrected.
What is in front of us is not correct.
The typographical error is being corrected under the relevant Standing Order.
That is my interpretation of the matter.
Although I could do so, I will not press the matter at this stage.
I agree with the Minister's comments regarding matters of a sensitive nature and so on. The penalties for those who are found to have abused the system in this regard must be clarified because we cannot have a situation where files go missing or are mislaid. However, in a situation where it has been announced that there will be a search of a particular Garda station, what is to prevent a person who does not want a specific file to be seen for moving it to the location where the sensitive information is stored and to which the ombudsman commission is denied access? It will be difficult to address this matter. Senator Maurice Hayes's suggestion would seem to have met the requirements in this regard.
I am mindful of what the Minister has said about the difficulties in regard to outsiders accessing documents. Where information on informers and others are concerned, such a scenario would not be desirable. Interpretation of this provision may be open to abuse. The main difficulty is the one I have mentioned in regard to a file being moved to the part of the station which is out of bounds for the ombudsman commission or the inspectors. There is nothing to stop such a file being subsequently put back in place and if a complaint is made in such an instance, the ombudsman commission may be able to obtain it at a later date. However, it should the case that there is total access or none. The notion that only part of a station can be open complicates the issue.
This issue was the subject of lengthy debate during our previous discussion of the Bill. Everybody wants to see a situation where investigations by the ombudsman commission can not in any way be thwarted by the concealment of documents. One hopes such concealment does not happen but it is a possibility. On the other hand, we must balance this with the necessity of ensuring State security. The Minister gave one example in this regard and there are others that could be given.
One solution might be to devise a system in regulations or otherwise whereby a chief superintendent is obliged to certify to the ombudsman commission that he or she is satisfied that any area declared off bounds to the commission does not contain any information relevant to its investigation. Furthermore, the non-disclosure of any relevant information, for whatever reason, should also be certified and a false certification should be an offence warranting dismissal. I am not sure how often investigations necessitate the searching of stations. One hopes it does not arise frequently. The solution I have suggested may be one way of building an additional safeguard into the regulations.
The provision is improved by the stipulation that the Minister should have to issue directions specifying the part of a document storage facility or Garda station that may be searched. However, the wording of the provision is somewhat confusing. My understanding of the original provision was that the Minister could allow an entire document storage facility to be searched and that directions were issued to place limitations in this regard. The new provision implies the Minister can make decisions about only part of a document storage facility. On the other hand, one could argue that the definition of "part" also includes "all". I pick up on these types of issues because I studied English in college.
This is a provision that may need to be reviewed. I acknowledge the points the Minister made about the difficulties in regard to outsiders accessing documents. The most important aspect of the ombudsman commission is that it is supposed to consist of trusted officials. The members are not outsiders but representatives of the people. I accept the Minister's point about the issues in regard to members of outside forces being seconded to the Garda Síochána and having sight of documents. However, this could be addressed without allowing these provisions to go as far as they do.
Senator Walsh's suggestion that Garda superintendents should certify that there is no information in which the ombudsman commission has an interest is inadequate. The purpose of the ombudsman commission is to investigate the working of the Garda and maladministration therein. Its members cannot necessarily accept the word of any garda, regardless of rank.
In regard to the security situation, one must consider recent events in Donegal. All the material examined by the Morris tribunal in its first module, which examined the planting of explosives and so on, came under the heading of so-called State security. The point that it could be abused has been made by everybody. It needs to be reviewed in the future. It will be part of the legislation now but it will have to be revisited.
It is a difficult task to balance these two interests. I have done my best but I am impressed by Senator Walsh's point that, under the general power to make disciplinary regulations, it appears that procedures could easily be put in place — subject to discussion with the Attorney General — for a system of vouching and counter-signature by another member of the force. Another superintendent could be brought in from outside to vouch for a matter. An arrangement of this kind might be made in order to minimise the capacity to abuse this loophole.
I ask the Minister to discuss group 13, concerning the appointment of judges to oversee the commission's investigations.
Group 13 concerns the subject matter of amendments Nos. 117 and 118. These are technical amendments. They arise from my correspondence with the Chief Justice with regard to the provisions in the Bill as it stands, which permit me to appoint a judge to inquire. This is being changed to "invite a judge to inquire (while serving as a judge)". Amendment No. 118 concerns the replacement of the existing subsection (2) with the form of wording set out in the amendment. The emphasis of both amendments is on judges being invited, in the first instance, to conduct an inquiry and then being appointed. The Chief Justice made the point that it was inconsistent with the independence of the Judiciary that judges could be seconded by me without being invited to agree to the proposition.
We fully support the two amendments. They make eminent sense.
I have no difficulty with the amendments.
I, like other Senators, have no objection to these. However, the response from the Chief Justice reminds me of the need to make the Judiciary subject to some sort of overarching body in terms of its conduct. The Minister might usefully investigate the system in operation in Massachusetts, where a commission oversees consistency of decisions and judicial conduct. Given some of the events that occurred here, this could be usefully investigated. Nobody wants political interference but it operates effectively there. I was personally impressed by the structure and the explanation we received from a member of the supreme court. We also met the Chief Justice of Massachusetts.
Senator Walsh will be interested to learn that we are currently drafting judicial conduct legislation with the co-operation of the Judiciary, the views of which we are taking on board.
I ask the Minister to discuss group 14, the final group concerning joint policing committees.
Amendments Nos. 38 to 50, inclusive, are comprehended by this group. Senators will no doubt recall the long discussions we had in this House on the joint policing provisions of the Bill. As I said afterwards, these provisions are all the better for the changes made in the House.
I brought forward further changes on Report Stage in the Dáil . The first concerns a recommendation, contained in the report by the Oireachtas Joint Committee Justice, Equality, Defence and Women's Rights following its hearings on community policing in Ireland, that the Department of Community, Rural and Gaeltacht Affairs should also be consulted on guidelines establishing the joint policing committees. The committee's recommendation was brought to my attention by Deputy Costello on Committee Stage in the Dáil. The inclusion of the Department of Community, Rural and Gaeltacht Affairs in the consultation process recognises the role of that Department in building capacity at local community level.
The issue addressed by amendment No. 43 was the subject of debate on Committee Stage in the Dáil, when it was indicated that consideration should be given to the question of laying the guidelines concerning the establishment and maintenance of joint policing committees by local authorities and the Garda Commissioner before the Oireachtas. I looked at the matter and took the view that they should be so laid and that is now provided for.
The background to amendments Nos. 45 and 46 is that the Bill in its original form provided that the setting up by joint policing committees of local policing fora could only be done with the consent of the Garda Commissioner. This was to guard against unreasonable expectations and the proliferation of this tier of community policing.
Having advanced and withdrawn one formulation for addressing this issue on Committee Stage in the Dáil, I indicated that I would look again at some other mechanism to prevent undue proliferation of policing fora. With this in mind, I brought forward an amendment on Report Stage which provided that the establishment of such fora would be a matter for consultation with the local Garda superintendent. This is in line with recommendation 13 in the report of the Oireachtas joint committee on community policing, as pointed out to me by Deputy Costello.
With regard to amendment No. 47, I agreed in response to a point made by Deputy Costello in the Dáil that section 32(2)(d), as amended in committee, was possibly a little too restrictive in that it only provided for the local policing fora to make recommendations to the joint policing committee concerning the matters referred to in what was then section 32(2)(a) rather than those in subsection 32(2)(b). I remedied that on Report Stage by allowing the local policing fora to make recommendations on the matters contained in what is now section 36(2)(b), on which the joint policing committee is to advise the local authority concerned and the Garda Síochána.
I mentioned on Committee Stage that I wanted to have an emergency brake procedure in terms of the establishment of local policing fora if the Garda Síochána has reservations about its capacity to service every local committee. After all, we agree generally that gardaí on the beat and on the streets are highly desirable. I do not want them overburdened with servicing local committees to the detriment of a visible policing presence. I indicated that I would confer on the Minister of the day the right to resolve disputes on whether a forum should be created as it would be advisable in my opinion to provide for some form of mediation where there is disagreement.
Having considered the matter, I decided to make such provision on Report Stage. The Bill now provides that, in circumstances where any dispute arises over the establishment of a local policing forum, the joint policing committee must submit the dispute to the Minister who will consult with the Minister for the Environment, Heritage and Local Government and the Minister for Community, Gaeltacht and Rural Affairs. The Minister's decision on the matter will be final. This is part of my approach to ensure that the local policing fora do not become victims of their own success and expand to such a point that they might become unworkable by placing an unreasonable burden on Garda resources.
On amendment No. 41, the chairman of the National Crime Council impressed upon me the need to consider providing for the appointment on the joint policing committees of representatives of local community interests. I discussed this issue at great length in this House. Accordingly, I tabled an amendment to section 31, which provides for the establishment of joint policing committees, to insert the appropriate reference in subsection (2)(b)(v) which is now: “such other persons (including persons representing local community interests) as may be provided for in the guidelines,”. That is a fair compromise on the matter. One may hold a purist view, as was discussed in this House, or the opposite view. This is a reasonable balance of the two views.
Section 33(1) places a duty on a local authority "to have regard to the need to take such steps as may be practicable to assist in the reduction of crime, disorder and anti-social behaviour within its area of responsibility." During the debate in the Dail this wording came in for some criticism and I requested that Parliamentary Counsel re-examine the provision, after which it was amended accordingly.
Amendment No. 49 concerns statements made without malice. Section 32(5), as passed by the Seanad, provides that any statement made without malice during a meeting of the joint policing committee or any sub-committee is privileged, as is any subsequent publication of that statement. Following the Report Stage debate in this House, a question arose with regard to the matter of privilege in the context of its application to subsequent statements. The point was made that if a public accusation was made against another person and at a subsequent meeting the allegation was withdrawn, the idea that someone else would be able to publish what had happened originally without reference to the withdrawal of privilege would be unacceptable. I said that I would address the matter in the Dáil and this was the purpose of this amendment.
Amendments Nos. 38, 39 and 44 are technical drafting amendments.
On a point of information, may I inquire as to progress?
We are discussing the final group of amendments.
This morning it was agreed on the Order of Business that we would cease our deliberations on this matter at 1.30 p.m. I wish to propose an amendment to the Order of Business that we continue with this matter until 2 p.m.
Is that agreed? Agreed.
As the Minister stated, this House addressed that entire area at length.
Amendment No. 43 states the Minister shall cause a copy of guidelines to be issued. When will these guidelines become available? Amendment No. 41 allows for the inclusion of persons representing local community interests. That was also discussed at length and we made the case that public representatives represent local community interests. It is needless to pursue that point. I am delighted the Minister dealt with the matter raised in amendment No. 49 with regard to statements at public fora as he stated he would do so. I agree with many of the amendments made and do not see the point in harping on about issues we already raised on Committee Stage.
I have no problems with the amendments proposed. Senator Cummins made a point on amendment No. 41. The Minister originally allowed for persons representing local community interests to be involved. To keep people happy, including people in my own party, he introduced this wording to clarify it. I feel strongly on this matter. Many people who pushed this seemed to forget that publicly elected representatives, such as ourselves and county councillors, represent local community interests. That is what we do. We are democratically elected. We do not go along to a meeting attended by ten people to get elected. We run for election where every registered elector in the community has a vote. That point must be made. Local partnership groups argue that local community representation is necessary. They seem to forget that open and accountable elections take place whereby people can vote for candidates. That is far more accountable than any other election process, such as the community fora. That being said I accept that local fora are beneficial.
The Minister had the foresight from the outset to see the benefits of having Oireachtas Members on these committees. An amendment was made thanks to input by Senator Leyden to include Senators. That is a positive aspect and I look forward to the possibility of being involved. Senator O'Toole mentioned that Oireachtas Members are kept off many boards as if they will somehow contaminate them by their presence. Perhaps this was brought in as part of the abolition of the dual mandate and now one cannot have an Oireachtas Member on any local board. The Minister did not see it that way in this legislation, which shows foresight on his part and that of his officials and staff. This House argued that these committees could be based on local area or town committees. That might be the way to proceed as opposed to basing them on county councils or county development boards. All in all I agree with the amendments.
On the latter point, I have witnessed a perceived bias of a small section of the public service against politicians. I have seen councillors and Oireachtas Members being excluded and, unfortunately, Ministers who are not in charge of their brief go along with it. We are fortunate that does not apply to the Minister with us today.
I am unhappy with two of the amendments. Amendment No. 41 inserted the phrase "(including persons representing local community interests)". The only people I know of who represent local community interests in general are elected public representatives. Community-based specific interest groups do effective work, and I do not state that they should not be involved. However, they should not be involved in joint policing committees, be that a popular or unpopular statement. I also have strong reservations about amendment No. 48, which deals with the Minister being the person to ultimately make a decision if a dispute arises.
Overall this is amazingly good legislation. The joint policing committee was one of the positive innovative aspects the Minister introduced in the Bill. We had a major debate on that matter and I do not want to rehash it. What I have seen since that debate confirms rather than changes the views I held on the joint policing committee. It can be a forum for dialogue and partnership between local authority members, Oireachtas Members and the Garda Síochána. It is the first tier of accountability for the Garda Síochána. I am more convinced than ever of the real need for such a structure. We have a clear choice. Either those who have been mandated by the people to represent them engage with the Garda Síochána on the joint policing committee where the actions and performance of gardaí will, in time, become part of what will be discussed by that committee, or we broaden it to a catch-all involving many types of interest groups. Undoubtedly the discussions will be on the specific activities of those interest groups. The element of accountability would be impossible to implement as part of that structure. I discussed that matter with senior gardaí who felt it would be difficult for them to be forthcoming with answers and information in a broadened committee. That dynamic could exist with an elected group with responsibilities, such as councillors and Oireachtas Members who operate under a code of ethics.
I will make an analogy in local government with the strategic policy committees and the area committees. I have yet to meet a councillor who will state the strategic policy committees, which involve outside community representatives from various organisations, are in any way as effective as the area committees made up exclusively of officials and politicians. The Minister should examine and analyse that analogy. Joint policing committees made up exclusively of elected members and gardaí should be set up in some areas to examine how they function. An essential element of accountability would be injected into the process.
We should not set up the committees and see how they get on. The Department should plan them and hold properly conducted seminars to advise councillors, Oireachtas Members and gardaí on how they should operate, interact and function, and on the powers of the committee. Future members of the committees should be provided with that background. Through the fora communities can actively interact with the entire system and structure. That is where community groups relevant to the subject matter can be fully and actively involved. I would leave it to the local representatives and gardaí to make a decision on people from public authorities, community groups or other persons provided for in the guidelines being involved with the joint policing committee. Circumstances may arise where they would regard the involvement of a certain person or group as a positive factor in the operation of the whole process but that local knowledge is essential to making that decision rather than it being done centrally in the Department by the Minister. I regret that I am not fully in agreement with the Minister but we have ploughed through this issue previously. I feel strongly about it and my only interest is the effective implementation of this measure. It has tremendous potential and I would not like to see that potential blunted in some way because of structural changes, and I am aware much campaigning has been going on in that regard.
I am very grateful to the Senators for the supportive remarks they made. I would make the point to Senator Jim Walsh that he won the war, effectively. He may not like the exact terms of the peace treaty at the end of the war but he won the war in the sense that when I came into this House with this Bill about a year ago, the model was radically different.
I listened carefully to what was said here and it accorded with my own hunches that we were going down the wrong track then and we have switched to the right track.
On the guidelines, it is to be noted that section 36(1) of the Bill as it now stands states that a local authority and the Garda Commissioner shall arrange for the establishment of a joint policing committee in accordance with guidelines issues under section 35. Once this section comes in, it is a positive duty. It is not something that may happen or whatever. It must be done.
The guidelines will have to be elaborated on, and that is by no means an easy task. One of the functions Senator Maurice Hayes's committee will be forcing the Department to do is ensure it is working on these guidelines and that this work is not pushed back because it is difficult. It is difficult. It is almost a piece of legislation in its own right.
I am minded, however, bearing in mind what Senator Jim Walsh said, to include in the guidelines a possibility to select between different models. That may be the way forward. It may not be the case that one size suits all. It may be the case that in some areas his purest version of politicians only and gardaí is the right way but it may be that in other areas there is a developed social infrastructure about which Padraic White, the chairman of the National Crime Council, spoke. It is possible to envisage guidelines which would have models A, B, C and D, for instance, and to let the local community and local gardaí select one or other of those models as they see fit. Otherwise, I will be in a position where everyone is saying I got the wrong solution whereas if I offer the local authority a choice of solutions to match its area it may make sense.
As long as it is not the county manager.
I am talking about the members of a local authority.
Some areas may have very active chambers of commerce with business improvement district arrangements in place but that may not be the case in other areas. I do not want to mention a town in case it has an active chamber of commerce but councils in some areas do not have developed infrastructure of that kind. I want to put guidelines in place that offer a menu of choices, thereby allowing people to make a decision which is best suited to their own particular needs.
Senator Walsh said this was the first level of accountability and in a sense that is true but I wish to emphasise a point I made when the Bill was on Committee Stage in this House. The intention is not that the local authority members will be able to lecture the gardaí. Local authorities have a duty, and they now have a solemn duty under this Act, to get their own acts together. The gardaí now have a forum in which they ask the local authority what it is doing about the state of a block of flats, for example, or the inadequate provision of an indoor football pitch for the youth in the area.
And the Minister will provide the money straightaway.
Local authorities sometimes say they have no money but they often get money for projects about which many people would be slightly sceptical. They can always find money for many projects when it suits.
They will probably do a lot better than the National Aquatic Centre.
The Minister, without interruption.
I will conclude on that note. I believe we have the balance just about right. I realise Senator Jim Walsh believes I have moved back somewhat from my earlier position but I will keep him happy by putting different models of local policing committees into the guidelines to allow people choose from a menu of models which are best suited to their own needs and give local authorities that degree of initiative in choosing the appropriate model for their area.
- Brady, Cyprian.
- Callanan, Peter.
- Cox, Margaret.
- Dooley, Timmy.
- Feeney, Geraldine.
- Fitzgerald, Liam.
- Glynn, Camillus.
- Hanafin, John.
- Kenneally, Brendan.
- Kett, Tony.
- Kitt, Michael P.
- Leyden, Terry.
- Lydon, Donal J.
- MacSharry, Marc.
- Minihan, John.
- Morrissey, Tom.
- Moylan, Pat.
- Ó Murchú, Labhrás.
- O’Brien, Francis.
- O’Rourke, Mary.
- Phelan, Kieran.
- Scanlon, Eamon.
- Walsh, Jim.
- Walsh, Kate.
- White, Mary M.
- Wilson, Diarmuid.
- Bradford, Paul.
- Browne, Fergal.
- Burke, Paddy.
- Burke, Ulick.
- Coghlan, Paul.
- Coonan, Noel.
- Cummins, Maurice.
- Feighan, Frank.
- Finucane, Michael.
- Hayes, Brian.
- Higgins, Jim.
- McDowell, Derek.
- McHugh, Joe.
- Norris, David.
- Phelan, John.
- Ryan, Brendan.
- Terry, Sheila.
- Tuffy, Joanna.
I thank the Minister for the time he has given to the debate in the House. On this side of the House we were very disappointed that the legislation was not recommitted to Committee Stage in the other House. That prevented us from dealing with many amendments the Fine Gael Party wanted to put forward. This Bill is the most important legislation dealing with the Garda Síochána since the foundation of the force. Despite the major faults and failings, especially those outlined in the Morris report, the Garda Síochána has——
The Senator cannot go back over the subject matter of the Bill.
——served the State well in protecting the citizens and the institutions of the State. Many members of the force have given their lives in this cause. The Bill must be seen as a new beginning, a new challenge and a new era of transparency. To that end, we welcome the Bill. It presents a new challenge, which the force will be capable of meeting. We wish to thank the Minister for giving of his time. We also thank the Minister's officials for the time and effort put into this technical legislation. We also thank the various associations involved in consultations on this legislation.
I welcome the enactment of this legislation. It received a tremendous airing and I thank the Minster for introducing the Bill in this House. It was teased out over quite a period of time. As Senator Cummins has noted, the Bill is a major reform of the legislative system underpinning the Garda Síochána.
We have covered matters such as the joint policing committees, a partnership between members of local government, Members of the Oireachtas, and the gardaí, the inspectorate and the provisions for the ombudsman. While there may be disagreement on the detail it must be said that overall the Bill will make a significant contribution to underpinning the operations of the force in the future. For this, the Minister and his officials deserve credit and our commendation. I look forward to the full implementation of this legislation. That the Minister has set up an overarching committee to ensure its early implementation is indicative to his absolute commitment to this regard.
There are many positive measures in this Bill. Unfortunately, my colleagues had to vote against it as there were fundamental matters that were not dealt with. These include an independent Garda authority and a single ombudsman.
We cannot deal with the contents of the Bill at this stage.
I understand that and I was not going to elaborate on those points. If one wanted to tackle the matters raised by the Morris report——
We have discussed these matters during the course of the debate.
I am responding to the Bill overall. I believe the structure of an independent authority would be needed to radically reform the force. The Minister would have demonstrated innovation if he had gone that far. He was not prepared to go as far as many other jurisdictions have gone in responding to a crisis in policing in their countries. We have had a crisis, as have many other open, democratic societies, and the manner in which one addresses it demonstrates how able one is to deal with that crisis. The Minister has shown some ability in that regard but not all that is required to build confidence in our police force, with the public on board. Similarly, with the ombudsman——
We cannot discuss the subject matter of what has been agreed.
I am aware of that and am not revisiting those issues but this Bill does not include an ombudsman in the true sense of the word. The Minister did not review it in light of the Morris tribunal, he merely tacked something on to the legislation.
All of these matters have already been discussed.
To conclude on a positive note I believe the joint policing committees are the most positive measures in this Bill. These will build confidence in the Garda Síochána and I hope they are widespread. It is the one measure in the Bill that the Minister will be able to claim credit for and he will be remembered for it.
I agree with the point made by Senator Jim Walsh that the composition of these boards should be as democratic as possible. I would have preferred that it had been done in that way. When the Minister is drawing up his regulations he should consider the situation in the North where these positions were advertised. One does not want the situation that exists with SPCs where one is not reaching out to a mass of people in seeking candidates. It is often a group of ten people in a room who may or may not be representative. In the North the positions are advertised and anyone can apply. The Minister should consider this when drawing up regulations.
I thank the Minister and his staff. The Members of this House teased out this Bill and made a positive input. The Minister responded well to our points and the Bill has been improved by the input of the Seanad, as the Minister has stated.
Usually only spokespersons contribute at this stage of the Bill.
Can I make a brief contribution for two minutes? It will be very brief and very pertinent.
No. If the Senator wants to make a statement——
I was subjected to a verbal onslaught by the Minister of Justice, Equality and Law Reform.
No, we are not getting involved in that. If the Senator wants to make a statement——
In making that onslaught the Minister should have spelt out in clear detail what steps there are for redesignation.
We will not get involved in that.
Questions put and agreed to.