Criminal Justice Bill, 1983: From the Seanad.

Wednesday, 31 October 1984

Dáil Eireann Debate
Vol. 353 No. 4

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The Dáil went into Committee to consider amendments from the Seanad.

Seanad Amendment No. 1:

In page 3, between lines 11 and 12, the following inserted:

“(2) An order shall not be made under subsection (1) in respect of any of the following sections namely, sections 4 to 6, 8 to 10, 15, 16, 18 and 19 until provisions relating to the investigation and adjudication of complaints by the public against members of the Garda Síochána not above the rank of chief superintendent have been enacted by the Oireachtas and have come into operation and until regulations under section 7 have been made.”

An Ceann Comhairle: Information on Thomas J. Fitzpatrick  Zoom on Thomas J. Fitzpatrick  Amendment No. 1, in the name of Deputy Woods, and amendment No. 1a in the name of the Minister are alternatives and should be discussed together. By agreement Seanad amendment No. 1 may also be discussed with these two amendments. Is it agreed that the three amendments be discussed together and decisions taken on them separately?


An Ceann Comhairle: Information on Thomas J. Fitzpatrick  Zoom on Thomas J. Fitzpatrick  For the guidance of Deputies may I say that Standing Orders provide that amendments to a Seanad amendment must be strictly relevant thereto. Similarly the debate on the amendments must be strictly relevant to the amendments.

Mr. Haughey: Information on Charles J. Haughey  Zoom on Charles J. Haughey  It is not necessary to say that to this side of the House.

An Ceann Comhairle: Information on Thomas J. Fitzpatrick  Zoom on Thomas J. Fitzpatrick  Thank you, Deputy.

Proinsias De Rossa: Information on Prionsias De Rossa  Zoom on Prionsias De Rossa  On a point of order, would the Chair advise me what form the debate on this amendment takes? Is it a Committee Stage debate?

An Ceann Comhairle: Information on Thomas J. Fitzpatrick  Zoom on Thomas J. Fitzpatrick  Yes. The House goes into Committee to discuss the amendments.

Dr. Woods: Information on Michael J. Woods  Zoom on Michael J. Woods  Before I move my amendment may I have the voting situation clarified? Am I right in thinking that voting will be on amendment No. 1, which is in my name?

[859]An Ceann Comhairle: Information on Thomas J. Fitzpatrick  Zoom on Thomas J. Fitzpatrick  That is correct. If that amendment is carried the other falls and cannot be moved.

Dr. Woods: Information on Michael J. Woods  Zoom on Michael J. Woods  I move amendment No. 1 to Seanad amendment No. 1:

In the third line to delete all words after “provisions” and substitute the following:

“have been enacted by the Oireachtas for the investigation and adjudication of complaints from the public against members of the Garda Síochána by or under the direction of an independent Complaints Commission, and until regulations under section 7 have been approved by the Oireachtas”.

We put down that amendment because we believed that the Seanad amendment put down by the Minister was very inadequate, and the Minister has recognised that fact because he has put down the following amendment which states:

In the third line to delete all words after “investigation” and substitute the following:

“of complaints from the public against members of the Garda Síochána not above the rank of chief superintendent and the adjudication by a body other than the Garda Síochána of such complaints have been enacted by the Oireachtas and have come into operation and until regulations under section 7 have been made”.

We put down our amendment because the Seanad amendment by the Minister merely stated “... until provisions relating to the investigation and adjudication of complaints... have been made.”“Provisions” is a very open term, and it could mean virtually anything. We welcome the fact that the Minister has come here with an amendment from the Seanad because it is going some of the way towards what this House sought to do, and his additional amendment goes somewhat further. In the course of this debate I hope to show that only by going as far as our [860] amendment goes can we provide properly for a full independent complaints commission.

The Minister's amendment does not do what he says it will do. Here we must be concerned about what is in the amendment, not what the Minister is saying outside the House. He has been saying various things outside the House which are not in his new amendment. For instance, he has been saying that the investigations will be under the control of this body which will be separate from the Garda Síochána, but his amendment does not say that and that is why we have to question his amendment. It does not say specifically that the investigations will be under the control of the complaints commission. He may have it in mind that eventually he would see them under that control, but that is not said in the amendment.

The other reason we are not happy with his amendment is that it separates the adjudication from the investigation of complaints. It goes a good way towards what we are looking for by talking about adjudication by a body other than the Garda Síochána, but it does not include the investigation under such a body. It separates the adjudication from the investigation, but we believe both should be by or under the control of the complaints commission. Our amendment seeks to have both adjudication and investigation under the control of the complaints commission.

There is no provision in the Minister's amendment to ensure that this body will be an independent body. It is said it will be a body separate from the Garda Síochána, but this could be a body comprising of any person: for instance, one could say that the Garda Club is a body separate from the Garda Síochána. We want the Minister to come across clearly and honestly and to say he is interested in having an independent body which is separate and seen to be such. If that is what the Minister is interested in having, we do not know why he will not put that down in his amendment. We believe that the independent complaints commission should apply to everyone and that senior [861] gardaí should not be excluded. There should be no discrimination between the members of the Garda Síochána, they should all be equal before the law.

The Minister has come here from the Seanad with his tail between his legs. He would not listen to the House when we put down amendments along these lines asking him to include such provisions in the Bill. We spent a great deal of time in this House discussing the matter before the Bill went to the Seanad. I know there were fairly dramatic developments in the Seanad that may have brought home to him the wisdom of the line put to him in this House. However, he would only give the House vague promises that if it was left to him he would in due course bring in some form of complaints procedure and some form of regulations and we were to take it on that basis.

We are very glad to see that he has come before the House with the amendments. It is far better for us in this House in relation to this Bill to be wise rather than to be clever, and I say that quite genuinely. Many of us here tried hard to be wise about sections of the Bill and it was not an easy thing to do. Certainly Members on both sides tried very hard not to be just clever about this matter. We must bear in mind that we are making provisions that will apply for a long time in the future. Perhaps our interest has been sharpened by recent events. Perhaps our sense of commitment and conviction about some of the measures we were suggesting from our limited experience and our theoretical knowledge of the situation have been strengthened by recent events. It is the duty of the Oireachtas to set down principles and to provide for the checks and balances. It is not enough for the Minister to speak outside this House about such checks and balances if they are not provided in the legislation.

On 5 July when the Bill was leaving this House I wished the Minister the best of luck in the Seanad, and they seem to have been prophetic words. At column 1810 of the Official Report dated 5 July I made the following comment:

[862] We have here a legislative bird without two wings, the regulations and the complaints procedure.

That was the way we felt about it. We had done a great deal of work on the Bill but at the end of the day we were sending it to the Seanad without these two wings. Consequently we are glad that the Minister has come before the House again.

The two areas we are discussing here are particularly important. We are talking about arrest and detention on suspiction. The primary purpose of their legislation is to enable the Garda Síochána to interrogate suspected persons in Garda stations. On page 316 of the Irish Law Reports, 1980, the Chief Justice said:

It has been stated many times in our courts that there is no such procedure permitted by the law as holding for questioning or detaining on any pretext except pursuant to a court order or for the purpose of charging and bringing the person detained before a court. Any other purpose is unknown to the law and constitutes a flagrant and unwarranted interference with the liberty of the citizen. The only exceptions are section 30 of the Offences Against the State Act, 1939, and section 2 of the Emergency Powers Act, 1976.

Both of those deal with subversive crimes.

Section 4 deals with detention after arrest. In an article which the Minister wrote for the Irish Independent of October 27 the Minister said the Bill gives power to detain persons for questioning not, be it noted, power to arrest, because there are no new powers of arrest in the Bill. The whole purpose of this section is to provide for detention after arrest. As we understand it, these are arrested people who are being detained. Section 5 deals with access to a solicitor and notification of detention. Section 6 relates to the powers of the Garda Síochána in relation to detained persons. Section 8 deals with the destruction of records. [863] Section 9 deals with applications to persons in custody under section 30 of the Offences Against the State Act, 1939. Section 7 deals with regulations regarding the treatment of persons in custody.

This amendment deals with this very important area and the new developments which are taking place under this Bill. From the time this Bill was first introduced the Minister has been promising us a complaints procedure. There was a supplementary memorandum to the Bill in October 1983. We asked why this small extra supplementary memorandum came with the Bill. It seemed to be a last minute decision or a small hiccup in the Minister's programme in bringing the Bill before the House. That little memorandum said that “the Minister wishes to state, for the information of Deputies and Senators, that the Government have decided on his recommendation that those provisions in the Bill giving increased powers to the Garda Síochána, and which will come into operation only when a ministerial order to that effect is made, will not be brought into force until a complaints procedure involving an assessment by an independent person or tribunal has been established.”

It went on to say that “it has not yet been decided whether legislation will be necessary to establish such a procedure or whether it will be introduced at least in the first instance on an administrative basis.” It concluded by saying that if legislation were necessary it would in any event have to be a separate Bill as the present Bill is concerned with criminal law procedures and could not appropriately deal with non-criminal procedures. We were very concerned about what that supplementary memorandum meant, and we questioned it in the House. We wondered what was going on. Since that time the Minister has been promising us a complaints procedure involving an assessment by an independent person or tribunal. The Minister seemed to be fairly clear at that stage that it would be an independent person or tribunal.

At different stages we tried to establish what the position was in relation to this [864] complaints procedure. It was promised again on the Second Stage of the Bill. In reply to a Parliamentary Question on 8 March 1984 the Minister told Deputy Mac Giolla and myself that the provisions giving increased power to the Garda would not be brought into operation until a complaints procedure involving an assessment by an independent person or tribunal had been established. He said:

The new procedures will not be brought into operation until both Houses of the Oireachtas have had an opportunity to discuss it. I am dealing with this matter with all possible speed, and although some further work, including consultations with garda associations and so on, is necessary, I expect to be in a position to inform the House of the proposals in the near future.

He concluded by saying:

I can say that at present the indications are that the scheme will be a statutory rather than an administrative scheme.

In April we had the Committee Stage of the Bill and again the Minister promised that a complaints procedure would be forthcoming. In July it was not available when the Bill was being finalised in the House. We pleaded with the Minister to bring in a complaints procedure in parallel with the Bill or as part of the Bill.

In June of this year a document was leaked which indicated that certain things were happening. On June 15 1984 an article appeared in The Irish Times which said that a Garda Síochána complaints board composed of a chairman and up to six members, with a permanent secretariat, whose chief executive officer would have significant powers of investigation would be proposed shortly by the Government in line with the commitment given by the Minister for Justice when the Criminal Justice Bill was introduced in the Dáil. It said the board would be able to investigate allegations against the Garda. Further down it said that the proposals [865] were finalised recently by the Department of Justice and had been circulated to the office of the Attorney General, the Garda Commissioner and several other senior officers plus the Garda representative organisations, and the board members would include the Garda Commissioner or an assistant commissioner nominated by him. It went on to give various other details of the Minister's proposals. On June 15 we got some indication that the Minister was doing something further about the whole question.

Why did not the Minister come forward with these provisions? How can it take so long to make such a document available to us? It cannot be so difficult that it takes such a long time. When you look at that background and at the amendments before us, you wonder what exactly is happening. In an article in the Garda News, volume 3, No. 2, March 1984, the views of the Garda are given and a number of points are made. One is that in Britain the most dramatic changes in police complaints procedures have occurred in recent years. It goes on to say that a police complaints board was established in 1976 and that a copy of every complaint had to be sent to the board, which had no investigative role.

Further it said that following a White Paper issued by the Home Office in 1981, a new complaints system was incorporated into the Police and Criminal Evidence Bill, 1983 and the principal changes proposed were the appointment of independent assessors to oversee policy investigation and a wider investigative role for the Police Complaints Board.

We get some idea of what is happening in Britain from these articles and the conferences which are taking place. The conclusion in this country was that, reservations apart, most reasonable people would probably favour a scheme if it conformed to certain principles. The Association of Garda Sergeants and Inspectors set out their views in relation to the principles on which the scheme should be based, and it is to be noted that it should incorporate an independent element at the adjudication stage.

[866] Are we beginning to see how the Minister now separates out adjudication from investigation? Again, the Garda Review, volume 12, No. 4, April 1984 had an article under the heading of “Extracts from the address of Michael F. Murray, AGSI National Executive on the Criminal Justice Bill”. This referred to a speech which Mr. Murray gave on April 2, 1984.

The article stated:

It is now over five months since the Criminal Justice Bill was introduced and we still have no knowledge of what is intended in the complaints procedures.

It is stated further:

The basic question we must ask ourselves here is, do we agree with the introduction of an independent element?

Further down it is stated:

On balance, I favour the second view. If we honestly and sincerely want to have contact with and support from the community, we must stop thinking of ourselves as a brotherly band beleaguered by hostile forces and start thinking of ourselves more as public servants within a specialised law enforcement organisation. I put it to you, therefore, that it is in our best interests to be in favour of some from of independent element in our complaints procedures.

Here we see the scene changing and developing outside the House. Mr. Murray stressed:

(1) The investigation of complaints must be conducted by gardaí. We cannot have independent investigators involved.

He summarises the position then as follows:

Therefore, I am suggesting that we should agree in principle to some independent element in our complaints procedures and (2) that element should not be extended beyond the adjudication stage and the new system should be along the lines I have suggested.

[867] When we try to see why the Minister is at such great pains to separate adjudication from investigation, it becomes fairly clear that he is subject to other pressures and that these are being exerted in favour of a particular system. I have no objection to that. Any organisation have the right to bring forward their own view, but the Minister has a duty far beyond that. He has a duty to the people and to the House to ensure that this proposed complaints procedure is clearly seen to be independent, both in its powers of investigation and adjudication.

From the outset we have maintained a consistent position in relation to this area. I might comment on the Minister's article, again in The Irish Independent of October 27, page 8, in which he referred to the complaints procedure. This made quite a few people wonder what exactly was happening. The Minister's style seems to be to talk outside to the media in special articles like this one and not be quite so forthcoming here in the House, or certainly to put the House after the articles outside it, which I think is an affront to the House, but that is a matter of personal opinion. We find under the heading of complaints procedure that the Minister says:

The establishment of a body other than the Garda Síochána to deal with complaints against the gardaí from members of the public and to supervise the investigation of complaints and in appropriate cases to carry out the investigation itself is a further safeguard.

When I read that, I asked what we were talking about. We looked at the Minister's amendment which separated quite clearly investigation from adjudication. We look at what the Minister writes under his own hand — it is not a source close to the Minister, or a spokesman or spokesperson, or anything else, it is the Minister as a guest writer writing under his own hand. If this is what the Minister intends, I do not see why he does not accept the amendment which we are putting before him.

[868]Mr. Noonan: Information on Michael Noonan  Zoom on Michael Noonan  (Limerick East): Does the Deputy agree with that?

Dr. Woods: Information on Michael J. Woods  Zoom on Michael J. Woods  I agree with this, if you put it in the House. That is the point.

Mr. Noonan: Information on Michael Noonan  Zoom on Michael Noonan  (Limerick East): That is fine. We know now.

An Leas-Cheann Comhairle: Information on John J. Ryan  Zoom on John J. Ryan  Please continue, Deputy.

Dr. Woods: Information on Michael J. Woods  Zoom on Michael J. Woods  Quite clearly, the amendment which we have put down will give power and will say quite clearly when these investigations will be by or under the control of. The Deputies and Senators will have agreed to it, it will be clear and written down and there will be no questions afterwards. I do not want a loose term like “revisions” in the Bill in relation to investigation. We would be relying then on what the Minister said in an article in The Irish Independent for what that might mean. Subsequently, as many of the learned members of the legal profession here will tell us, that does not mean anything when you come to court. It is what is down in the Act that matters. That would be our question and I found that somewhat confusing. If it means that the Minister is prepared to go further and be clearer here in relation to the Bill itself, that would answer most of our questions, or the bulk of them in any event.

On the Minister's amendment No. 1a, our position has been fairly straightforward and consistent from the outset. We went to the stage of putting down an amendment in the House for establishing a complaints procedure and then an additional amendment defining what the procedure was. They were defeated in the House. We are back to the same ground again in these amendments. According to the Minister's second amendment to amendment No. 1a the body will only have power to adjudicate, as I read it. The investigation will remain with the gardaí. The body will have no function or power to control or direct the investigation. The Minister may say when we come to having the complaints procedure [869] before the House that he is prepared to write in certain powers which would enable the body to have control over the investigation and to do it on the lines of the amendment we are suggesting. They would have to rely entirely on what they are told by the garda investigating complaints against a member of the Garda Síochána.

Secondly, in relation to the Minister's amendment, the adjudication is by a body other than the Garda Síochána. This body, of course, may be comprised of members, a majority of whom could be members of the Garda Síochána, or there may be an individual, single member, or as the leaked document in The Irish Times said, a commissioner or a member representing the commissioner.

The Minister's amendment does not even provide for a body which will be completely and fully independent of the force in their adjudication. They are not, therefore, an independent body and appear to have no function in investigation. As the Minister proposes in his amendment, the senior staff will be above the regulations and complaints procedure. We find that difficult to accept. Obviously, the staff down the line will be directed by the senior staff, and if that is the case we believe that the same procedure should apply to all members from the bottom to the top. We often ask, “where does the buck stop?” In this case the buck must stop at the top, and the procedures should allow for that to happen.

The question of “provisions” which is still being used in the Minister's amendment 1a can, of course, mean anything. It can mean a committee, an internal investigation or even just a financial provision. We feel that the term “provisions” is something of a toothless dragon. That is why in using, as the Minister does, the word “provisions” in relation to the investigation, you are left with a fairly open situation in relation to what these provisions might subsequently be. The Minister's amendment says “provisions for the investigation of complaints from the public against members of the Garda [870] Síochána not above the rank of chief superintendent”. We feel that “provisions” in that sense is too loose and too open. If the Minister is going to tell us that what he said to Independent Newspapers on Saturday is what he is going to say here tonight, I would be happy if he would put that down as an amendment to his own amendment and put it into the Act itself.

On the question of excluding assistant commissioners, deputy commissioners and commissioners we must ask why the Minister wants to exclude the senior staff. The Bill in England at present includes a similar term, but why exclude the senior staff? Surely this is an opportunity for the Dáil to provide an independent body who will review the conduct of all members of the force against whom a complaint has been made, from the ordinary member of the Garda Síochána to the top level. There was a time when the Minister talked about de-politicising the Garda Síochána. He even spoke of a Garda authority. Now he is being put to the test. This is an opportunity to provide an independent, non-political body to deal with these matters. The House deserves to be told in a simple yes or no if the Minister is going to retain political control over the upper echelons of the Garda Síochána in this respect, or will he allow an independent body to deal with complaints by members of the public against such persons? After all, the Minister may tell us that the Government, if they are not happy with the behaviour of the top echelons of the gardaí, the most senior members, can take their own action, but we still come back to the question of what action the ordinary member of the public can take. The whole purpose of this complaints commission is for the ordinary members of the public to have recourse to an independent complaints body.

Mr. G. Mitchell: Information on Gay Mitchell  Zoom on Gay Mitchell  Would there be any chance that the ordinary Member might get a chance to speak? Deputy Woods has been speaking for half an hour.

Dr. Woods: Information on Michael J. Woods  Zoom on Michael J. Woods  There is no time limit. If [871] the Deputy cares to wait he will get his opportunity to speak.


Dr. Woods: Information on Michael J. Woods  Zoom on Michael J. Woods  By rushing earlier maybe we left some matters unfinished.

A Deputy:  Hear, hear.

Dr. Woods: Information on Michael J. Woods  Zoom on Michael J. Woods  We have an opportunity to finish them now, and there is a duty on us to deal with them extensively. This, therefore, is the Minister's opportunity to provide a truly independent, non-political body to deal with this situation. The Government have their own means of dealing with complaints of their own. On the other side of the coin, the commissioner, deputy commissioners and assistant commissioners have a right to be heard by an independent body of high standing if allegations are made against them by members of the public, without the intervention of any political pressure or forces. Therefore, there is good reason for having all the members subject to this independent complaints commission. Our amendment provides for a complaints commission who would be independent in their functions, in particular independent of the Garda Síochána. We believe that this is essential to ensure mutual confidence between the Garda and the public at large. It is not only good for the Garda and the public but it is essential that the amendment which we are putting before the House is passed and that the word “independent” is used. Needless to say, various views on this will be expressed, and I leave further comment on that until we see what the Minister's reply is.

I would like to point to the fact that the Ombudsman was set up as an independent person, independent in the performance of his functions. In the Ombudsman Act, 1980, section 4 (1) it is clearly set out that he is independent in his functions and in the First Schedule to that Act we see quite clearly that the Ombudsman has Departments of State and other persons subject to investigation including the Department of Justice. [872] Therefore, the Department of Justice and the Secretary of the Department of Justice and all members of the Department of Justice are subject to investigation by the Ombudsman. It is difficult to say then why there should be particular exclusions at the top levels in the Garda Síochána when even the top administrators in the Department of Justice are not excluded. I am sure the Minister will have various comments to make in relation to the whole question of “independent”, but I would point out that we have independent arbitrators appointed by the Government. We see this body which we are proposing as a complaints commission, an administrative tribunal with quasi-judicial functions, and we feel that they must be independent especially in relation to the investigation of complaints.

Therefore, we are concerned about the Minister's amendment and that in his amendment he has gone away from the use of the word “independent”. He has used it at various stages on the way along. In the Fine Gael/Labour Programme for Government of December 1982 on page 26 the Minister was not afraid to use the word “independent”. He said:

An effective Independent Complaints Procedure will also be established to safeguard both the public and the Gardaí, who are often the subject of false allegations.

I emphasise, an independent complaints procedure. Our amendment does this. It is a necessary amendment if the Minister is pursuing the line which he has told us he is pursuing. We are concerned about the situation, as are many Members of the House. Our concern has been intensified by recent happenings and events and we are anxious that there will be a procedure which is fair to the public and to the Garda. We believe that we owe it to the public and the gardaí to set up here in the House the parameters within which we expect the Garda to work on our behalf. Essentially we are looking for the two functions to come under the control of the independent complaints commission, and I accept that in many instances [873] the Garda may themselves carry out investigations on behalf of the commission and under the direction of the commission. This should be left to the commission to control and organise. That is why we want to see it by, or under the direction of an independent complaints commission.

We are glad that the Minister is coming nearer to our position. If he has further proposals which will follow on his statement on Saturday, and if he has some amendment which will bring this into the Bill at this stage, we will certainly welcome it.

Minister for Justice (Mr. Noonan,: Information on Michael Noonan  Zoom on Michael Noonan  Limerick East): The amendment made by the Seanad proposes that the sections relating to detention in Garda custody, withholding information about guns or stolen property, as well as those dealing with inferences, will not come into operation until a statutory complaints procedure and treatment regulations are in force. I moved this amendment in the Seanad to meet similar amendments moved by Senators Mary Robinson, Michael Higgins, Eoin Ryan and Brian Hillery.

In moving the amendment there I made it clear that, although I considered that it was unnecessary in view of the undertakings that had been given by the Government and by myself about the complaints procedure and the regulations, I had put it forward in the hope that it would achieve a greater consensus. I was conscious also that similar views had been expressed in this House when we were considering the Bill. Indeed, Deputy Woods tabled amendments on Committee Stage and Report Stage to the like effect so far as the complaints procedure is concerned.

I am moving my amendment, No. 1a, to the Seanad amendment with a view to providing some reassurance to those Members of the House who may feel that that amendment may be too widely expressed in so far as it could envisage the adjudication of complaints under the [874] new procedure by the Garda themselves. This will not be the case as the commitment by the Government is to a complaints procedure with a strong independent element so that there could be no question of complaints being adjudicated on by the Garda alone.

In particular, I hope that my amendment will go some way towards meeting the concern of Deputy Michael Woods that there should be some reference at this point to the independent character of the new complaints body while not pre-empting the decision of the Oireachtas as to the best form that that independent body should take.

The main difference between Deputy Woods's amendment and the amendment made by the Seanad is the inclusion of a reference to an independent complaints commission. I see a difficulty about using the word “independent” in the text of the amendment. The inclusion of such a reference would mean that we would be anticipating at this stage what the ultimate decision of the Oireachtas would be on the forthcoming legislative proposals relating to the investigation and adjudication of complaints. I do not think that it would be appropriate, or even useful, for us to try to do that. Otherwise, when the detention provisions and the Complaints Bill are duly brought into operation, the case might be made that the detention provisions were invalid because, it would be argued, the complaints commission was not given that particular title or was not 100 per cent independent and so on. This possibility is not entirely fanciful because, if the case succeeded, any detentions and subsequent convictions could be rendered invalid. It is in fact for this reason that the wording of the Seanad amendment was carefully expressed so as to avoid any such possibility.

What I am saying is that we are bringing in a complaints procedure by means of a Bill which will have to go through all Stages here and in the Seanad. If we try to lock the detail of that complaints procedure into a short form of words here, the form of words we adopt may prove subsequently to be in conflict with what the House decides the complaints [875] procedure should be. This would leave us in a situation where provisions of this Bill, and prosecutions taken subsequently as a result of certain of these provisions, could be ruled invalid. For example, if the standard procedure that the Government could remove a member of the complaints board was included, would that board be then independent? Would the Supreme Court see that as “independent”? Would the Supreme Court decide that “independent” means the kind of independence the Judiciary have, no diminution in status or remuneration? Is that what we are talking about?

It is not a lack of commitment to the independence of the complaints procedure. I have repeated all along that it must have a strong independent element and that it must be a body other than the Garda Síochána. My concern is with the use of a word in an amendment which could subsequently be deemed to be in conflict with the complaints procedure which this House, and the other House, decided was the appropriate one to accept. That is the difficulty in the use of the word “independent”.

There is on other difficulty — it is a minor one — in relation to Deputy Woods's amendment. His amendment provides that the detention provisions etc. will not come into operation until the regulations under section 7 have been approved by the Oireachtas. On the other hand, the Seanad amendment, and my amendment to it, refer to the regulations having been made. The possibility exists with Deputy Woods's amendment that although the regulations might have been approved by the Oireachtas they might not be made by the Minister before the detention provisions are brought into operation. That is the difficulty. In an attempt to make the obligation on the Minister tighter Deputy Woods, in effect, has tabled an amendment which makes it weaker. I can only make regulations as a Minister, or any subsequent Minister, under the provisions of section 7. That section states that these regulations must be brought before this House, and the other House, and positively approved. [876] It is only then that I can make them. However, in the manner Deputy Woods has framed his amendment, it would only require that the two Houses approve the regulations without any obligation on this Minister, or any subsequent Minister, to make those regulations. As soon as the Dáil and Seanad approve the regulations, even if they were not made by a Minister, the sections I have mentioned could be brought into operation by ministerial order.

I accept that Deputy Woods was trying to make it a tighter obligation but, in fact, he has weakened it rather than making it tighter. The main issue raised by Dr. Woods's amendment is the extent to which there should be involvement by the Garda in the complaints procedure. In my view the appropriate time to debate this issue is on the second stage of the complaints Bill when the House will have the advantage of having a detailed text before it. It may be worth mentioning however that from research it is a lengthy piece of legislation. The intention of the amendment I have brought in from the Seanad, on the advice of the Seanad, is that certain sections of the Bill should not be brought into effect until this House does certain things. First of all, that a Bill establishing a complaints procedure which it is satisfied with is passed, and, secondly, that it approves regulations which it is satisfied with. That is the purpose of the amendment.

The purpose of the amendment is not to go on to specify the detail of the complaints procedure because it is not appropriate to do that. The complaints procedure is not being brought in by ministerial order or by regulation. It will be established by an Act of Parliament. It will have to go through all Stages in this House. I am not in any way withdrawing from any type of commitment. Deputy Woods referred to various delays on my part but I should like to point out to him that one of the reasons for this was that although quite a lot of work on the Criminal Justice Bill had been done by the previous administration, and by administrations previous to that, the administration of which Deputy Woods was a [877] Minister, did not envisage a complaints procedure going hand in hand with the Criminal Justice Bill. In effect, we had to start almost from the beginning in framing a complaints procedure. My proposals for a complaints procedure went before Government in April last and I have done my best since then to get them drafted. We are very near the stage of having a Bill which can be circulated to Members. I would like to be able to give the details of that Bill tonight but some Member would surely say that this was not the appropriate way to behave, that if a Bill is within a short time of circulation, the appropriate thing to do is to circulate it to all Members with a debate to follow.

Deputy Woods spoke for a long time but I do not see a particular conflict in general with the ideas he has put forward and the ideas I am putting forward. In the newspaper article to which Deputy Woods referred I attempted to summarise the type of proposals on which the Bill is being drafted. I do not think there is a conflict of content here. I cannot accept an amendment which is technically flawed on the use of the word “independent” because that leaves a problem. I cannot accept an amendment which, in effect, reduces the commitment I gave to the Seanad. I gave the Seanad a commitment that the amendments and regulations would have to be made. Deputy Woods's amendment says that the regulations have to be approved by the Houses of the Oireachtas. That is less of a commitment. The amendment I am making myself is adding to the commitment I gave to the Seanad, and I am sure they will be happy with a strengthening of that commitment. Certainly I am sure they would not be happy with a loosening of that commitment.

With respect, I do not think there is a major difference of policy or approach between what I am saying and what Deputy Woods has advocated. I know some of Deputy Woods's views because, when we were discussing the Criminal Justice Bill, he put forward proposals himself for a complaints procedure very similar to the kind of procedure which [878] operates in Great Britain. For that reason I have an idea of his mind on the matter. Deputy Woods referred to an article in The Irish Times, to a leak, which did not come from me but certainly gives an indication of what was the approach at the time. Substantially the approach remains the same, substantially, but not in all details or matters.

Basically what I am saying is that the commitment stands. We are now writing it into the Bill in a firm way because the Seanad thought that an appropriate thing to do. There will be plenty of opportunity here, on all Stages of a complaints Bill, to debate the issues involved. But I do not think it is practical, possible or appropriate that, in a complicated piece of legislation, we should attempt — by way of amendment of another Bill — to tie in the detail of a complicated piece of legislation. The intention of the amendment, as proposed in this House, as proposed in the Seanad, and as moved by me subsequently in the Seanad, is that certain sections of this Bill will not become law until this House is happy and has passed a complaints procedure, until the other House is happy and has passed a complaints procedure and until regulations have been approved by this and the other House, and subsequently made by the Minister. Then, and then only, can sections of this Bill come into law.

Proinsias De Rossa: Information on Prionsias De Rossa  Zoom on Prionsias De Rossa  I am pleased to see the Minister back in this House with an amendment indicating that the sections to which I was opposed on Committee Stage when it was going through the House will not be brought into effect until a complaints procedure, commission or tribunal — whatever one likes to call it — is introduced.

However, the question the Minister has raised as to the use of the word “independent” in the Fianna Fáil amendment and the possible conflict that that might create in subsequent legislation could be easily overcome by the Minister introducing here, in the first place, the complaints procedure in law and leaving the finalisation of this Bill until such time as that complaints procedure has been dealt with [879] by the House. It should be remembered that the Bill itself is not dependent on a complaints procedure or tribunal, that it does not at present contain within it any indication that it could not work or its provisions not be operated without a complaints tribunal. It would be a disaster to have its provisions implemented without a complaints tribunal, but the Bill itself is not dependent thereon.

Certainly there is very grave public disquiet about the fact that the Garda investigate complaints against themselves. Recent events in Kerry and Cavan have heightened that concern. It is concern which has been raised by a number of Deputies in this House in the course of the debate on this Bill. Recent events have, if you like, borne out the reservations many of us expressed as it progressed through this House. Therefore I do not see the validity of the Minister's argument that to accept the word “independent” would in some way conflict. Indeed the necessity for the amendment would be abolished were the Minister simply to say: we will not take this Bill any further until such time as we have the complaints procedures dealt with by both Houses of the Oireachtas. That would be the beginning and end of it. We would not have to spend the next day or two debating this amendment if the Minister made such an announcement here this evening, which would be a very useful thing for him to do.

The other point I should make about the complaints procedure is that it is not entirely dependent, or does not arise simply because there are certain sections being introduced in this Bill. The need has existed for many years. The need arises for independent investigation of allegations against the Garda, not only in situations in which people have been arrested and held in Garda stations. It arises in relation to allegations in which people have been arrested and held in Garda stations. It arises in relation to allegations before a person even enters a Garda station. There have been two recent incidents in my constituency, the details of which I do not propose to go [880] into at this stage, one in which a young boy of 16 years of age was assaulted and kicked outside his own home by gardaí and a separate incident in which a young girl of 18 years of age, who was six months pregnant, was kicked, by gardaí. I referred those matters to the superintendent in my area and they are being investigated by the Garda.

I feel very strongly the urgent need for independent investigation of complaints against the Garda. I make this argument as much in defence of the Garda themselves as I do in defence of people in general. Everybody is aware that there is a growing alienation, that there are trends developing within Irish society trying to alienate young people in particular from the Garda. They are using every opportunity — in particular on the question of the drugs issue — to alienate both adults and young people from the Garda, to attempt to establish an independent police force, or independent policing, if you like, a vigilante-type policing. Anything lending itself to that type of alienation must be opposed; anything lending towards its diminution must be supported. An independent complaints procedure constitutes one of the key elements in ensuring that the confidence of the general public is retained in the Garda, that they are allowed continue with their work. I would ask the Minister to take the position that the legislation on the independent inquiry into allegations against the Garda be brought into this House before we proceed any further with this Bill.

With regard to the regulations under section 7 — clearly regulations which cannot be put before this House until the Bill itself becomes law — it should be pointed out that there is nothing to prevent the Minister from presenting this House with draft regulations, proposed regulations, he intends introducing. We would then know, when discussing this Bill — and I argued this point in Committee State before the Bill ever went to the Seanad — exactly what were the regulations regarding the conduct of Garda in relation to the questioning of suspects, detention and so on. We would [881] then know precisely what regulations would be enforced or made available. I must stress that what I, and I am sure every other Deputy, is arguing is for the protection of the innocent, that is the vast majority of people. We have produced various statistics to show that the vast majority of people who have been detained under the Offences Against the State Act subsequently were released without charge. Only one in seven of those arrested under section 30 of the Offences Against the State Act and detained for up to 48 hours are subsequently charged as a result of their detention. Large numbers of innocent people could be taken in under these detention provisions. It is absolutely essential that we know before we agree to pass this Bill what protection there is going to be for the person being detained.

The third point I would like to make is that in approaching this amendment and on Committee Stage we felt that it was also necessary to ensure that before the sections on detention and related sections came into effect, regulations under section 27 should be introduced. That is the regulations which concern the electronic recording of questioning. The Ceann Comhairle has ruled that amendment out of order. I do not propose to discuss the amendment except to stress and appeal to the Minister for Justice to ensure that before the sections referred to in his own amendment are introduced, a system of recording or of overseeing the detention of suspected persons in Garda stations should be introduced. The Ó Briain Report, in its recommendations, suggested a custodial guardian who would be present at all questioning and oversee the detention of a person. The Minister has a section which does not introduce that particular concept but proposes the electronic recording of questioning. It is essential that recording, whether by electronic means or by hand or whatever, should be introduced before the sections on detention are brought into effect.

Despite the long debates that have taken place on the Bill in the House and in the Seanad, I have yet to see any concrete evidence produced to show that [882] the Bill will have the effect which is being claimed for it, in other words the detection of crime and a reduction in the crime rate. I have asked the Minister for Justice to produce this evidence on a number of occasions. In the Seanad a Labour Party Senator requested that a White Paper be produced on the question of crime which would give us a basis for discussing the question of crime and the approach to crime. But the only response we have had from the Minister for Justice in relation to the aspect of proving the effectiveness of the Bill is that he said it is not the total response to the question of crime. I have no evidence before me to show that it is not the total response. It appears to me to be the total response. Also in the National Plan there is no reference whatsoever to what the Government's policy is in relation to tackling the question of crime, its causes and how it can be dealt with other than by strengthening the law, dealing with the sentence rather than the causes of the problem.

Consequently, while I welcome the amendment the Minister has brought in as a further improvement to the Bill, I cannot see myself supporting the Bill in principle because I do not see the sections on detention and related sections are the answer to the problems the State faces in relation to crime.

Mr. G. Mitchell: Information on Gay Mitchell  Zoom on Gay Mitchell  In relation to these two amendments I cannot see much difference between them. Much of the debate here this evening is more relevant to the further debate which will take place when the Bill comes before the House. There is no doubt that there is a very strong consensus within the House that it is absolutely necessary that an independent complaints tribunal be set up. It is in the interests of the Garda Síochána, as much as in the public interest, to ensure that the complaints tribunal is fully independent and seen to be fully independent. In the past when Members of this House have been raising questions about complaints relating to a minority of Garda Síochána, they had the very distasteful experience of being virtually [883] attacked by people who were described in the Press as spokesmen for the Garda. They are not spokesmen for the Garda, they are trade union leaders who have failed to acknowledge any fault whatsoever with the present situation. Some Deputies, like myself, have spent quite a long time, up to 1983, calling for stronger powers and action on crime but only to find that because of the resulting publicity people were coming to me to put the other side of the coin. I was one of the Deputies who highlighted certain abuses but who was attacked by what were described as spokesmen for the Garda. They almost slander anybody who disagrees with their line and say that people are playing into the hands of subversives no matter how anti-subversive people are, like myself. Members of this House are open to attack and almost slander by inference or by declaration by certain spokesmen who have done a total disservice to the Garda Síochána by their approach.

I question the whole appropriateness of Garda representative bodies being cast in the role of pressure groups or potential lawmakers. What would happen if we were to extend the same widely used liberties of some of the Garda representative associations to the Army or the Judiciary? We must be very clear about this. There is no doubt whatever about the support of the legislature for the Garda Síochána. There is no doubt whatsoever about the decency of 95 per cent of the Garda Síochána. But Members of this House cannot be cajoled, blackmailed or bullied against doing their duty by speaking out about the small percentage of gardaí who are not only not doing their duty but who are undermining the whole of the Garda Síochána. I want to make it very clear that there is nobody in this House out to attack the Garda Síochána, but out to uphold the Garda Síochána to ensure that they can go about their duties, to ensure that they do not have to put up with this innuendo themselves. There should be no doubt whatsoever in any reasonable person's mind about the need [884] for a fully independent complaints tribunal to investigate complaints of this nature.

I am worried because of the reaction of some of the spokesmen because they have failed to recognise that there is any problem or accept that there is a problem. That is not doing a service to the Garda.

Progress reported; Committee to sit again.

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