Garda Síochána (Amendment) (No. 3) Bill 2014: Committee and Remaining Stages

Section 1 agreed to.
NEW SECTION

I move amendment No. 1:

In page 3, between lines 14 and 15, to insert the following:

“Amendment of section 65(1) of Principal Act

2. Section 65(1) of the Principal Act is amended by the substitution of “1 member, who is” for “3 members, all of whom are”.”.

Senator Trevor Ó Clochartaigh had to leave for an engagement so I am dealing with this Bill. The first amendment calls for a single ombudsman. The rationale behind the amendment of section 65(1) of the 2005 Act is to change the structure of the commission. Instead of three people, there is a single Garda Síochána ombudsman. This was debated on Committee Stage in the Dáil and the Seanad but a single ombudsman would ensure a greater degree of accountability and ensure there is no possibility of dissenting opinions or divergence in the ombudsman's findings.

I welcome the Minister of State. During the debate on Second Stage, I spoke on the tripartite ombudsman and referred to the recommendation of the Joint Committee on Justice, Defence and Equality, which was that consideration be given to changing the Garda Síochána Ombudsman Commission, GSOC, from a three-person institution to a single Garda Síochána ombudsman. The committee unanimously recommended it because it would ensure greater accountability and no possibility of dissenting opinion or divergence. We were persuaded by experience elsewhere.

On Second Stage, I mentioned that the Bill dealt with specific changes to the powers of GSOC. These are welcome and endorse and support the proposals made by the report of the Joint Committee on Justice, Defence and Equality. During the debate on Second Stage, we were told there would be legislation with further reforms to GSOC and other aspects of the report of the Joint Committee on Justice, Defence and Equality. Can consideration be given in the future to changing the ombudsman model to the single person model spoken about by the Joint Committee on Justice, Defence and Equality?

I welcome the Minister of State and I am forming the view that he spends more time here than some Senators.

The point made by Senator David Cullinane in support of his amendment is compelling. One individual should make a decision based on the best possible advice, as opposed to a commission of three, which leads to a majority decision. Senator Ivana Bacik said it was a unanimous recommendation of the Joint Committee on Justice, Defence and Equality, of which I am a member.

I find it bizarre that the Government has not accepted such a sensible recommendation. Best practice, certainly with our counterparts in Northern Ireland, is at the top of the chain with best possible advice but somebody, ultimately, must make a decision. I cannot see why it is necessary to have a three-person commission or ombudsmen to make a decision. A single individual should make the decisions. I am at a loss to know why it is necessary to have three persons. I would like welcome the Minister of State's thoughts on the matter.

I thank Senator David Cullinane for tabling the amendment which engages the House in a discussion of the matter.

The Minister appreciates that this is one of a set of changes to the 2005 Garda Act that has been recommended by the Oireachtas joint committee. It was the view of the joint committee that having a single person commission could provide for greater accountability and strengthen its overall position.

The Minister has considered the amendment carefully and, as she indicated during the Dáil debate on a similar amendment, there is more involved than merely a change to the number of the commissioners. In particular, she is conscious of the fact that there are certain practical advantages that flow from having a three-person body and she believes these must also be fully taken into account. In that context, she would recall for Senators that the underlying rationale for the establishment of the three-person model was that it would facilitate the bringing of expertise and experience across a range of different sectors to the work of the commission. In addition, it was also considered to be of practical advantage that at least one commissioner would always be available to guide and direct operations. At operational level, GSOC considers this to be a significant advantage in a working environment as unpredictable as that faced by the commission. Some of its most serious and sensitive cases have occurred at weekends or during holiday periods.

Moreover, it is necessary to take account of the fact that a three-person commission, with its legally required gender balance and its range of experience and expertise, conveys a strong public assurance that fairness and sensitivity are at the core of GSOC's approach at the highest level. It also helps that potential differences between an individual commissioner and key interlocutors do not impinge on the smooth and effective running of the organisation.

The Minister accepts that, up to recently, the interaction between the Garda Ombudsman Commission and An Garda Síochána has not been functioning as effectively as it should. This is an area in which substantial work is currently being undertaken by both organisations. Furthermore, and this is the primary purpose of the Bill we are debating, additional powers are in the process of being conferred on GSOC.

In the circumstances, the Minister would be reluctant to alter the current GSOC structure unless it could be shown that a significant advantage would accrue from doing so. Having considered the overall position, including the fact that specific arrangements have been made for the commission, through a nominated member, to account to Oireachtas committees, the Minister would not currently favour moving to a one person commission. However, very conscious of the position of the joint committee on this matter, her view is that this is an aspect that needs to be kept under review going forward. The Senators will appreciate the consideration that has been given to the amendment and in the circumstances the Minister hopes they can withdraw it.

Amendment put and declared lost.
Sections 2 and 3 agreed to.
NEW SECTION

Amendment No. 2 is in the names of Senators David Cullinane, Trevor Ó Clochartaigh and Kathryn Reilly. As amendments Nos. 2 to 5, inclusive, are related, they may be discussed together, by agreement. Is that agreed? Agreed.

I move amendment No. 2:

In page 3, in between lines 20 and 21, to insert the following:

“Amendment of section 82(1) of Principal Act

4. Section 82(1) is amended by the insertion of the following definition:

“ “Independent Adjudicator” means a member of the judiciary chosen to adjudicate on disputes between the Ombudsman Commission and the Garda Inspectorate.”.”.

I have no problem with the grouping of the amendments because they all relate to the need for, in our view, an independent adjudicator in regard to this section of the Bill.

Historically, GSOC would be stopped in its tracks with an investigation by being told certain information was not available to it or would be delayed on the basis that it was a national security issue. We need to ensure the provision is supervised in order to ensure that it is not used as a mechanism to hamper GSOC investigations.

The amendment seeks the introduction of an independent adjudicator who could decide whether such information should be given out on these grounds. Clearly, the amendment is designed to have the highest level of independent oversight which, we believe, is necessary and important if we are to have full confidence in the system. The amendment is constructive and seeks to improve the Bill and ensure a greater level of independent oversight in this area.

I thank the Senator for his contribution. The effect of the proposed amendments would be, in particular, to remove from the Minister for Justice and Equality the function, under section 96 of the Garda Síochána Act 2005, of determining whether certain information or material could be made available to GSOC where matters of national security are involved. The Minister has considered the amendments carefully and she is of the clear view that, given that the security of the State is a priority function of the Government, the task of deciding whether information or material can be withheld on security grounds should remain with the Minister for Justice and Equality, in his or her capacity as a member of the Government.

In regard to the Senators' amendments, the Minister emphasises the fact that it is incumbent on the Minister for Justice and Equality to ensure that the relevant functions, under section 96, are discharged properly and impartially. As Senators will be aware, this is one of a number of areas where important security-related matters are dealt with by the Minister, including authorising the interception of communications.

One of the features of the Senators' amendments is that they involve a specific role for a member of the Judiciary. In that regard, the Minister has asked me to draw the attention of Senators to section 100 of the Garda Síochána Act 2005. It provides for the appointment of a designated High Court judge to keep under review the operation of certain provisions of the Act, including section 96, that relate to the security of the State.

The Minister believes these arrangements are prudent and provide a suitable level of judicial oversight. Accordingly, she does not believe that it would be appropriate to adopt the changes proposed by the Senators. In the circumstances, the Minister is not in a position to accept the amendments and ask the Senators not to press them.

I thank the Minister of State for his advice, but I shall press the amendment.

Amendment put and declared lost.
Question, "That section 4 stand part of the Bill," put and declared carried.
NEW SECTIONS

I move amendment No. 3:

In page 3, between lines 23 and 24, to insert the following:

“Amendment of section 96(4) of Principal Act

5. Section 96(4) of the Principal Act is amended by the substitution “and where a dispute occurs the matter shall be referred to the Independent Adjudicator” for “except in accordance with a direction of a Minister”.

Amendment put and declared lost.

I move amendment No. 4:

In page 3, between lines 23 and 24, to insert the following:

“Amendment of section 96(5) of Principal Act

5. Section 96(5) of the Principal Act is amended by the substitution of “Independent Adjudicator” for “Minister”.”.

Amendment put and declared lost.

I move amendment No. 5:

In page 3, between lines 23 and 24, to insert the following:

“Amendment of section 96(6) of Principal Act

5. Section 96(6) of the Principal Act is amended by the substitution of “Independent Adjudicator” for “Minister” in each place where it occurs.”.

Amendment put and declared lost.
Question, "That section 5 stand part of the Bill," put and declared carried.
Section 6 agreed to.
SECTION 7

Amendment No. 6 is in the names of Senators David Cullinane, Trevor Ó Clochartaigh and Kathryn Reilly. As amendments Nos. 6 and 7 are related, they may be discussed together, by agreement. Is that agreed? Agreed.

I move amendment No. 6:

In page 4, line 18, to delete “subject to the consent of the Minister given”.

I will be brief because the amendment is somewhat related to the previous amendments. Given the Minister of State's previous contribution, I can hazard a guess that he will not accept the two amendments. The amendment is about the removal of the Minister having the power in order to allow GSOC retain its independence. I wish to make the point that we believe GSOC must be as independent of the Minister and the Department of Justice and Equality as is possible, which is what is sought by these two amendments. I am reiterating that argument.

Section 7 inserts a new section 102B into the 2005 Act, which brings the Garda Commissioner within the scope of Garda Síochána Ombudsman Commission, GSOC, investigations for the first time. This is a significant development and one to which the Government attaches a high degree of importance. That being said, it also must be borne in mind fully that in addition to carrying out her general policing functions, the Garda Commissioner is the head of the national security service. In the latter role, the Commissioner fulfils a vital function which is closely linked to the obligations of the Government to preserve the security of the State.

Senators will be aware that the Minister, in response to the Dáil Committee Stage debate, had strengthened the provision of section 102B to provide a specific role for the Government, rather than just for the Minister, with regard to important decisions to be made under section 102B. To that end, the Dáil accepted the Minister's amendment, under which Government approval would be required before the Minister can consent to a GSOC investigation into the conduct of a Garda Commissioner, request GSOC to commence such an investigation or refuse to consent to a proposed GSOC investigation. In addition, the original text was strengthened further to ensure that in a situation in which a request from GSOC to undertake an investigation into the conduct of the Commissioner is being refused, this can only be done for stated reasons. The practical reality is that it would only be in exceptional cases that consent to a proposed investigation would not be given and in these circumstances, specific reasons would be provided.

Furthermore, as the Minister stated, it is almost impossible to envisage any circumstances under which, on foot of a demonstrable concern that the Garda Commissioner may have committed an offence or behaved in a manner that would constitute serious misconduct, consent would be withheld. As I have indicated, the requirement for Government approval of a ministerial decision under section 102B meets concerns expressed during the Dáil debates that there simply would be a ministerial veto on a GSOC investigation into the Garda Commissioner. Overall, because of the pivotal national security functions undertaken by the Commissioner, the Minister does not consider it to be appropriate to amend the Bill further in respect of ministerial consent. In the circumstances, the Minister asks the Senator not to press the amendments.

Question, "That the words proposed to be deleted stand," put and declared carried.
Amendment declared lost.

I move amendment No. 7:

In page 4, to delete lines 29 to 31.

Question, "That the words proposed to be deleted stand," put and declared carried.
Amendment declared lost.

I move amendment No. 8:

In page 5, between lines 17 and 18, to insert the following:

“(2) The Ombudsman Commission may, if the investigation so requires, access the PULSE system.”.

This issue has been discussed on Second and Committee Stages and the amendment recommends that access to the PULSE system by GSOC is given on a statutory footing and not by way of protocols. If I may quote from one of the joint committee's recommendations:

The access to Garda systems is of integral importance to the operation of effective oversight of An Garda Síochána. While in practice, this process is already in operation between An Garda Síochána, GSO[C] and the Garda Inspectorate, it is only by means of protocols which have been put in place. The Committee submits that this needs to be placed on a statutory footing in order to ensure that no party can opt out of a protocol.

Again, I argue this strengthens the Bill and seeks to achieve greater oversight and accountability in respect of the PULSE system.

Again, this was an issue I raised on Second Stage and, as the Senator noted, it also was recommended by the Oireachtas Joint Committee on Justice, Defence and Equality that permission to access the PULSE system by GSOC be placed on a statutory footing. The joint committee considered that access to PULSE would be of integral importance to the operation of effective oversight of An Garda Síochána by the ombudsman commission and again, I stated on Second Stage that this was an issue I hoped the Minister would revisit, even if it cannot be done in this Bill. I acknowledged, as should all Members, that the Bill does indeed implement some important recommendations of the justice committee. In particular, this section, namely, section 7, enables the Garda Commissioner to come within the remit of GSOC for the first time, which was recommended strongly by the joint committee. Consequently, I welcome the positive changes and strengthening of GSOC powers but I hope the Minister will revisit this issue.

On amendment No. 8, the Minister agrees fully that GSOC should have access to PULSE for the purposes of its investigations. However, I can assure Senators that at this stage, it is an aspect of co-operation that is being fully catered for operationally. While the Minister is aware that this is an area that has given rise to difficulties for GSOC in the past, the commission has confirmed to the Department of Justice and Equality that it is satisfied with the level of access to PULSE that is now being provided. As part of the processes involved, Garda training has been provided for GSOC personal. For the Minister's part, she believes it is appropriate that GSOC's access to the PULSE system should be provided within the general framework of the co-operation that takes place between An Garda Síochána and GSOC. This is specifically provided for in the 2005 Act and the Minister does not consider that there would be any particular advantage in making separate provision for one particular area where information is to be exchanged.

In addition, legislating for access to a named information system as proposed has the potential to give rise to practical difficulties such as when that system is changed, integrated with other systems or decommissioned. In that regard, Members may be aware that the Garda Inspectorate has made significant recommendations with regard to the PULSE system. It is also important to stress that section 9 of the Bill contains a provision that will underpin any requirement on the Garda Commissioner to provide information for GSOC. That section inserts a new section 103A into the Garda Síochána Act 2005 and places a statutory obligation on the Commissioner to provide GSOC, as soon as practicable, with information that GSOC requires for the purposes of carrying out its functions. This observation applies fully to the PULSE system and has the advantage that it is equally applicable to any alterations that might be made to that system. In the circumstances, the Minister does not consider that a new legislative provision along the lines proposed is necessary and asks the Senator to withdraw the amendment.

Amendment put and declared lost.
Question, "That section 7 stand part of the Bill," put and declared carried.
Section 8 agreed to.
SECTION 9

I move amendment No. 9:

In page 5, line 37, to delete “as soon as practicable” and substitute “within 30 days”.

I will be brief. Sinn Féin has concerns that the Garda sometimes can cause undue delays in the granting of information or data to GSOC investigators. The amendment proposes to replace the words "as soon as practicable" with "within 30 days". Its purpose is to place a limit on the length of time the Garda can withhold information or not give information to investigators.

This is a reasonable amendment. The provision "as soon as practicable" is open to what is the definition of practicable and who defines it. Consideration perhaps should be given to a 60-day period because that definitely would be practical under any circumstances. It is not just a question of GSOC getting information from the Garda, as victims of crime often have serious difficulties in getting access to an updated status on a crime. In the United Kingdom, a system has been put in place on the Internet called TrackMyCrime whereby a victim can track the progress of the investigation into a crime online. I believe the information technology infrastructure in Garda headquarters in general and in Garda stations nationwide probably is an issue that must be addressed. It is welcome that in consultation with the Garda Commissioner and the Minister, an information technology committee has been set up to upgrade this infrastructure because it is quite frightening to think one cannot even e-mail one's local Garda station. That simply is unthinkable in a modern age in a modern country and should not be acceptable.

The new section 103A being inserted into the 2005 Act by section 9 of the Bill places a statutory obligation on the Garda Commissioner to provide to GSOC any information that the commission needs for the purposes of the investigation of a complaint or any matters comprehended by sections 102 and 102B.

The requirement is that the information will be provided to GSOC as soon as is practicable, that is, as soon as it is feasible to do so. This approach has been taken because it must be recognised that, inevitably, there will be situations where it will not be possible to adhere to specific deadlines. Such a case could occur where a key witness is not available or where a very large body of work must be undertaken.

The Minister is aware that there have been situations where the amount of time taken to supply information or material to GSOC has been unacceptable. In that context, she is satisfied that the new provision is sufficient to ensure that GSOC will be able to obtain any necessary information within a period that is appropriate to the complexity of the information being sought. The Minister understands that there has been a significant improvement in the timeframe within which An Garda Síochána provides information for GSOC. Senators will appreciate that the new section 103A will further strengthen the current arrangements. The Minister is very much aware of the requirement for the speedy provision of information by An Garda Síochána to GSOC. In that regard, she is satisfied that section 103A will contribute positively to this requirement and, given the complexities involved, she will be keeping the position under review. In the circumstances the Minister asks the Senators not to press the amendment.

Amendment put and declared lost.
Section 9 agreed to.
Sections 10 to 13, inclusive, agreed to.
Amendment No. 10 not moved.
Section 14 agreed to.
Title agreed to.
Bill reported without amendment and received for final consideration.
Question put: "That the Bill do now pass."
The Seanad divided: Tá, 33; Níl, 2.

  • Bacik, Ivana.
  • Brennan, Terry.
  • Burke, Colm.
  • Byrne, Thomas.
  • Coghlan, Eamonn.
  • Coghlan, Paul.
  • Comiskey, Michael.
  • Conway, Martin.
  • Craughwell, Gerard P.
  • Crown, John.
  • Cummins, Maurice.
  • Daly, Mark.
  • Gilroy, John.
  • Hayden, Aideen.
  • Heffernan, James.
  • Keane, Cáit.
  • Kelly, John.
  • Landy, Denis.
  • Leyden, Terry.
  • Mooney, Paschal.
  • Moran, Mary.
  • Mulcahy, Tony.
  • Mullins, Michael.
  • Naughton, Hildegarde.
  • Noone, Catherine.
  • Norris, David.
  • Ó Domhnaill, Brian.
  • O'Donnell, Marie-Louise.
  • O'Neill, Pat.
  • Quinn, Feargal.
  • Sheahan, Tom.
  • van Turnhout, Jillian.
  • Zappone, Katherine.

Níl

  • Cullinane, David.
  • Reilly, Kathryn.
Tellers: Tá, Senators Paul Coghlan and Aideen Hayden; Níl, Senators David Cullinane and Kathryn Reilly.
Question declared carried.

When is it proposed to sit again?

At 2.30 p.m. on Tuesday next.

The Seanad adjourned at 1.55 p.m. until 2.30 p.m. on Tuesday, 3 March 2015.