Seanad Éireann díospóireacht -
Friday, 12 Jul 2019

Vol. 267 No. 1

Criminal Justice (International Co-operation) Bill 2019: Committee and Remaining Stages

Sections 1 and 2 agreed to.

SECTION 3

Senator Niall Ó Donnghaile

I move amendment No. 1:

In page 5, between lines 2 and 3, to insert the following:

“(6) (a) Where a decision is made by the Garda Commissioner to refuse in full or in part the request for assistance, the Coroner who made the request may seek a review of this decision by a Judge of the High Court.

(b) The request for a review shall be made in writing to the President of the High Court, who shall nominate a Judge of that Court to conduct the hearing.

(c) The Judge nominated under paragraph (b), shall hold a hearing in camera with the Garda Commissioner, who shall outline the basis of his refusal.

(d) The Judge nominated under paragraph (b) may direct the Commissioner to accept the request for assistance, or to accept parts of the request for assistance previously refused, if they are satisfied that it is in the interests of justice to do so, and if they are satisfied that to do so would not—

(i) be likely to prejudice the sovereignty, security or other essential interests of the State,

(ii) be likely to prejudice a criminal investigation, or criminal proceedings, in the State, or

(iii) otherwise be inconsistent with the functions of the Garda Síochána under section 7 of the Act of 2005.”.

The section relates to the Bill's most substantive provisions on procedures that will exist for the Garda to co-operate and provide testimony through a coroner's inquest. It deals with how the force will accede to a request from an inquest that would involve a garda of a rank not lower than chief superintendent being questioned by a judge in the High Court and then it being witnessed by the coroner or his or her representatives who have requested the information. The procedure is that the request comes into the Garda Commissioner who consults the Minister. The Garda Commissioner then makes a decision to accept the request for assistance, refuse it or accept it in part. In refusing, having consulted the Minister, the Garda Commissioner must be satisfied that the request may likely prejudice the sovereignty, security or other essential interests of the State or may likely prejudice a criminal investigation or criminal proceedings within the State or otherwise be inconsistent with the functions of the Garda Síochána under section 7 of the Act of 2005.

The procedures are well and good. However, the reality is that the decision is ultimately that of the Garda Commissioner alone. There is no scope for review or oversight. It gives him or her considerable power. Given the weight and importance of these inquiries for families and survivors who are seeking the truth about Troubles-related deaths or incidents, the coroner should be entitled not to agree with what he or she may consider an unfair decision.

This amendment, through a careful mechanism, provides for a coroner who has had his or her request refused to seek a review of the decision by a judge of the High Court. The judge, who would be nominated by the President of the High Court, would hold an in camera hearing with the Garda Commissioner, who would outline the basis for his or her refusal. The same judge would have to have regard to the same three considerations, namely, that acceptance may likely prejudice the sovereignty, security or other essential interests of the State, that it may likely prejudice a criminal investigation or criminal proceedings in the State or otherwise be inconsistent with the functions of the Garda Síochána under section 7 of the 2005 Act. The judge, therefore, would then have to decide whether to agree and accept the argument of the Garda Commissioner and whether he or she believes that the Garda Commissioner should co-operate with the request from the coroner or whatever organisation is seeking that request.

In the context of what we are talking about, namely, the weight of the situation and the sensitivities involved, it is right for the coroner to have the opportunity in a careful way to have this decision reviewed and reconsidered. Such judge-led oversight is not unusual for such legislation as this, whether in this jurisdiction or elsewhere. It is a proportionate and carefully weighted amendment but one that is important to ensure every opportunity is given to coroners to have maximum co-operation from An Garda Síochána in any inquest or any request that comes forward.

I am keen to hear the Minister's view. He will appreciate our view on the importance of giving further oversight, accountability and a layer of governance. All these factors are important as we move the legislation forward. I will not prolong the House.

Minister for Justice and Equality (Deputy Charles Flanagan)

I thank the Senator for his contribution. Unfortunately, I am not in a position to accept the amendment. I have several observations by way of reason. First, the proposal is problematic from a drafting point of view. The amendment is inconsistent with the mechanism outlined in the section. The amendment, as the Senator said, provides for a High Court judge following a review of the decision to direct the Garda Commissioner to accept the coroner's request for assistance that the Commissioner had previously refused. However, no other amendment is made to any other part of the section to either set aside the Garda Commissioner's decision or to require the examining judge under section 3(9) to take account of the outcome of the review of the judge of the High Court. I am unsure how a review of an appeal by a judge of the High Court, as proposed in the amendment, may be binding on the High Court judge conducting the examination of the Garda. This could be legally problematic. In addition, as pointed out in the Dáil last night by Deputy Jim O'Callaghan, the fact that what is proposed is an in camera hearing involving the Garda Commissioner and the reviewing judge without the presence of a coroner from Northern Ireland is problematic.

Even if the amendment was consistently reflected in the section, I would still have a problem with it as it is contrary to the overall objectives of the section, which is designed to foster a further spirit of co-operation between the Coroners Service for Northern Ireland and the Garda authorities to allow a coroner to access Garda testimony in a form that will be admissible to the inquest. In practice, the Garda authorities and the coroner will work closely on the request for assistance. The application of the mechanism to take Garda testimony would always be preceded by significant co-operation and exchange of information under a co-operation agreement concluded under section 5. The conflict between the Garda Commissioner and the coroner would not arise at the stage of the application of the section 3 mechanism. As it stands, the Garda Commissioner does not have carte blanche to refuse to accede to a request. He or she may only do so for specific and clearly defined reasons. The reasons are listed under section 3(4). The Garda Commissioner will not accede to a request for specific reasons fundamental to the functions of An Garda Síochána, including the protection of life, the vindication of human rights, the pursuit of justice or the preservation of peace and security in the State for all its residents and citizens. Section 3(4) protects the integrity of these Garda functions.

The amendment would be unprecedented in terms of cross-border assistance on criminal justice matters. State agencies participate or enter into co-operation agreements in a spirit of trust, accommodation and confidence. While some restrictions are necessary, such as under section 3 of the Criminal Justice (Mutual Assistance) Act 2008, to ensure the integrity of national sovereignty and criminal justice processes, they are seldom invoked because of the high level of engagement and trust cultivated by participants over a period. In this regard, the Garda is well used to operating within these frameworks. Senators will be aware of the high level of co-operation between An Garda Síochána and the Police Service of Northern Ireland. In fact, I would go as far as to say that co-operation and constructive and positive engagement has never been so good. Long may that continue. This trust and engagement can never be undermined by the threat of a judicial process or challenge to the integrity of the decision. I am not going to accept the amendment for these reasons.

Senator Niall Ó Donnghaile

I regret to hear that from the Minister. The intention behind the amendment is to provide victims and families and those seeking to access the truth with another layer of accountability and fairness and an opportunity to achieve their stated aims and objectives, that is, truth and justice for their loved ones.

I acknowledge the technical points the Minister has made but I do not believe that there was no opportunity or scope to allow us to engage in respect of or refine some of those issues. That is the difficulty which presents itself in taking all of this in one go, as we are doing. Because I support this legislation and because I support the Minister in his endeavours to get it through this House today, I do not want to go into the political argument too deeply. However, the reality is that many of the issues faced by families, the concerns raised by the campaigns, the denials of truth and the injustices that have been inflicted arise from a lack of accountability and oversight. In the past, this allowed people to do things and fall into certain corners. I am not making any accusations in saying that. I am merely stating that this amendment would give us the opportunity to shine further light on the matter if necessary. It would add another layer of accountability and bring us closer to full truth and justice being available for families, rather than adding another layer of bureaucracy. While I am disappointed to hear the Minister's stance, it is important that this amendment be put before the House given its importance to families and victims. I will be pushing it to a vote.

Amendment put:

The Committee divided: Tá, 9; Níl, 17.

Tá

• Bacik, Ivana.
• Conway-Walsh, Rose.
• Devine, Máire.
• Gavan, Paul.
• Higgins, Alice-Mary.
• Humphreys, Kevin.
• Nash, Gerald.
• Ó Donnghaile, Niall.
• Ó Ríordáin, Aodhán.

Níl

• Burke, Colm.
• Buttimer, Jerry.
• Byrne, Maria.
• Clifford-Lee, Lorraine.
• Coffey, Paudie.
• Conway, Martin.
• Craughwell, Gerard P.
• Davitt, Aidan.
• Feighan, Frank.
• Hopkins, Maura.
• Lawlor, Anthony.
• Lombard, Tim.
• McFadden, Gabrielle.
• O'Donnell, Kieran.
• O'Mahony, John.
• O'Reilly, Joe.
• Wilson, Diarmuid.

Tellers: Tá, Senators Niall Ó Donnghaile and Rose Conway-Walsh; Níl, Senators Gabrielle McFadden and John O'Mahony..

Amendment declared lost.

Section 3 agreed to.

Section 4 agreed to.

SECTION 5

Acting Chairman (Senator Diarmuid Wilson)

Amendments Nos. 2 and 3 are related and may be discussed together by agreement. Is that agreed? Agreed.

Senator Niall Ó Donnghaile

I move amendment No. 2:

In page 7, between lines 31 and 32, to insert the following:

“(4) Within three months of the Commissioner coming to such an agreement as outlined in this section, the Minister shall require from the Commissioner a report outlining the nature, purpose and value of this agreement to the objectives in subsection (1), and the Minister shall cause a copy of this report to be laid before both Houses of the Oireachtas.”.

Taking into consideration the previous vote and having heard the will of the House, I understand where Members stand. It is, however, important to make the point in respect of amendments Nos. 2 and 3 that there are already powers in the Garda Síochána Act for the force to enter into agreements with police in other jurisdictions. The legislation before us provides for the Garda to enter into agreements with agencies that are not police but rather those that are comparable to the Policing Authority, the Garda Síochána Inspectorate, GSOC, coroners' inquiries or units such as the anticipated historical investigations unit or the independent commission on information retrieval. Similarly, it will allow GSOC to enter into agreements with comparable organisations. The purpose of the amendments is to provide that the Garda Commissioner or GSOC will lay a report before the Houses of the Oireachtas to the Minister outlining the purpose, nature and value of the agreement. Entering into such agreements is valuable and useful, and in the context of the legislation will facilitate people's ability to have truth and justice for their individual cases. In general it will be of value if the Houses are kept informed of any such agreements through a report being laid before them. I am keen to hear the Minister's views on this.

Deputy Charles Flanagan

I will not accept these amendments. Agreements under proposed new sections 28A and 81A can only be concluded with the prior consent of the Government. This provides for the necessary oversight and integrity of agreements with respect to the type of co-operation proposed, the type of information to be exchanged by the parties, and the compliance of the agreement with our data protection regime. The amendment is somewhat problematic in that it is somewhat unclear how a report could outline the nature, the purpose or the value of the agreements. By nature and purpose they are agreements of co-operation on the exchange of information. It is unclear how the value of the agreements generally can be assessed within an arbitrary timeframe of three months. The co-operation agreements could potentially be and often are sensitive in nature. Their purpose is to facilitate the performance of the functions of each party to the agreement. It could possibly be inappropriate and even damaging for the Garda Commissioner to be compelled to produce a report on the value of co-operation between Garda authorities with, for example, an asset recovery agency in another jurisdiction.

I am also concerned that the amendment has the capacity to undermine the purpose of the agreements being provided for. It could also act as a disincentive for concluding or wrapping up an agreement. In addition, I note that the amendment only applies to the co-operation agreements provided for in this Bill, which is a co-operation agreement between An Garda Síochána and non-law enforcement agencies in another jurisdiction, and a co-operation agreement between GSOC and a law enforcement agency or a police ombudsman agency in another jurisdiction.

These new sections are based on an existing provision in the Garda Síochána Act. The amendment does not apply to the existing legislation and co-operation agreements in section 28 of the Garda Síochána Act 2005 and it is therefore inconsistent in the matter of its application. For those reasons, I have a difficulty with the amendment. I have listened carefully to the points raised by Senator Ó Donnghaile but I have a problem with the amendment and it would not be appropriate to factor in the text of the amendment to the Bill.

Amendment put and declared lost.

Section 5 agreed to.

Section 6 agreed to.

SECTION 7

Senator Niall Ó Donnghaile

I move amendment No. 3:

In page 9, between lines 13 and 14, to insert the following:

“(4) Within three months of the Commissioner coming to such an agreement as outlined in this section, the Minister shall require from the Ombudsman a report outlining the nature, purpose and value of this agreement to the objectives in subsection (1), and the Minister shall cause a copy of this report to be laid before both Houses of the Oireachtas.”.

Amendment put and declared lost.

Section 7 agreed to.

Sections 8 to 10, inclusive, agreed to.

Title agreed to.

Bill reported without amendment and received for final consideration.

Question proposed: "That the Bill do now pass."

Senator Aodhán Ó Ríordáin

On behalf of the Labour Party, I congratulate the Minister on the passage of this Bill. We in the Seanad and Deputy Sherlock in the Dáil are anxious to be as helpful as possible in this regard.

The Minister knows, as he has reiterated it a number of times, that the lack of an administration in the North and a government in Stormont is deeply regrettable, especially at this crucial time in the history of these islands, with the disaster of Brexit unfolding every day. The Labour Party supports this Bill, and we welcome the fact that the Garda Commissioner will now be able to enter into co-operation agreements with non-police or non-law enforcement bodies outside the State. We thank the Minister and his officials for the work they have done on this Bill. As ever, when dealing with matters in both Northern Ireland and these islands generally, it is most advantageous when the political systems in the two Houses of the Oireachtas work as one. I again thank the Minister and his officials.

Senator Niall Ó Donnghaile

I welcome the passage of this legislation. While we failed to get amendments passed, which we sincerely thought would strengthen it, we fully accept and support the passage of this legislation and the will of this House. As has rightly been acknowledged by Senator Ó Ríordáin, victims of the conflict, and people who have been hurt and continue to deal with trauma and loss, are at the heart of this Bill. While today's passage is welcome, the requirements on this State in comparison to those of the British state under the Stormont House Agreement are extremely modest and small in comparison. While this legislation is good and will bring some reassurance to a number of families, many of them will now look to the British Government and not see any movement at all, which will cause them further trauma, hurt, and pain.

As we pass this legislation through this House today, I am conscious of all the victims of the conflict, and of those who are campaigning, whether doing so through the courts, or by engaging with us, as politicians, or unfortunately, as we have seen on two separate occasions, through taking to the streets in their thousands to march for the full realisation of the truth and justice mechanisms agreed in the Stormont House Agreement.

I sincerely welcome the passage of this Bill today, and I sincerely hope that it will bring some pressure to bear on the British Government to fulfil the obligations it agreed to when there was a functioning administration in the North and all parties and both Governments came together to agree these mechanisms. It is an absolute shame on those who continue to drag their feet and cause further hurt, pain, and injustice to the families in question. Go raibh maith agat.

Senator Martin Conway

I too welcome the passage of the Criminal Justice (International Co-operation) Bill 2019, and I thank the Opposition for its co-operation. This important legislation will assist An Garda Síochána, the PSNI, and other stakeholders in helping to resolve unsolved legacy crimes from the Troubles in Northern Ireland. A clear message should go out from this House that all parties need to step up to the plate when it comes to the devolved Government in Northern Ireland, because we need the Assembly in Northern Ireland to get up and running as a matter of absolute urgency. I know that talks are ongoing and I commend those who are engaging in those talks in a meaningful way. The Brexit deadline of 31 October is looming and there is a critical responsibility on all parties to provide Northern Ireland with political leadership and fill the current vacuum, which is not helping anyone on this island. It is certainly not helping citizens in Northern Ireland, who expect their political leaders to show leadership. Over the coming weeks, I hope we will see people taking responsibility, showing leadership, and making decisions to provide the type of politics and environment the people in Northern Ireland so richly deserve.

Minister for Justice and Equality (Deputy Charles Flanagan)

I acknowledge the contributions of Senators. This is important legislation which ensures the Government honours obligations and commitments entered into in respect of Northern Ireland, under the Stormont House Agreement. I expect all assurances and commitments given by the British Government in relation to Northern Ireland to be fully complied with and upheld. I thank Senator Clifford-Lee in particular for her contribution on behalf of Fianna Fáil. I also thank Senator Ó Donnghaile and acknowledge the favourable comments from Senator Ó Ríordáin on the part of the Labour Party. I thank Senators for sitting this morning in order to pass this important legislation which will fulfil a commitment entered into by the Government. I expect this legislation will be beneficial in bringing some modicum of comfort and support to victims, their families, survivors, and communities across Northern Ireland.

Question put and agreed to.