Private Members' Business. - Garda Sióchána (Complaints) Bill, 1985: Fifth Stage.

Wednesday, 4 June 1986

Dáil Eireann Debate
Vol. 367 No. 5

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Minister for Justice (Mr. Dukes): Information on Alan M. Dukes  Zoom on Alan M. Dukes  I move: “That the Bill do now pass.”

[1127]Mr. Skelly: Information on Liam Skelly  Zoom on Liam Skelly  I just want to make a few comments in relation to the Bill.

An Ceann Comhairle: Information on Thomas J. Fitzpatrick  Zoom on Thomas J. Fitzpatrick  For the guidance of the Deputy I would point out that we are confined at this stage to talking about what is in the Bill.

Mr. Skelly: Information on Liam Skelly  Zoom on Liam Skelly  The Bill, as I read it, has gone a long way from what was originally intended, that is, constituting a totally independent complaints Bill. It will not provide for an independent system of investigating complaints made against members of the Garda Síochána. In neglecting to provide a fair and impartial complaints system, an adjudication of complaints, the Bill will fail to satisfy the Garda or the general public. A certain amount of disquiet is felt by the public and by members of the force. When the public realise that the Commissioner or his representative is on the board, certain fundamental questions will be posed now and in the future, such as, whose interests will the Commissioner represent. Without imputing anything to any particular commissioner—particularly the present incumbent of that office—I am talking about human nature and frailty, all of us being products of our environment, when it might appear to the public that the Commissioner might lean towards the members because he will be protecting his force. I am not saying it would be his intention to take sides but, even if unconsciously he does so, it would be understandable.

On the other hand I believe disquiet is felt by members of the force themselves. Many of them will not be happy with the Commissioner or his representative on the board. One can envisage all sorts of circumstances arising in which members of different rank from top to bottom could be subjected to investigation. Again, human nature being what it is, members on the way up might suddenly find themselves on the way down. It would be difficult to keep one's inside knowledge, prejudices or feelings separate from the job of investigation. Probably one would be influenced by one's [1128] experiences. Therefore I do not believe it will be a completely happy marriage having such representatives an the board. A certain amount of disquiet will be felt by members of the force from time to time—it being a very large organisation of almost 12,000—and there have been many examples in the recent history of the force of members being subjected to investigation. They themselves will not like to be investigated by their peers or other officers. That is one reason Deputy Woods' recent amendment of the disclosure penalities would be welcome; it might discourage gossip of stories. But certain members of the force may not be happy being investigated by their peers or other members. In my view that disquiet may give rise to a demand for an independent complaints tribunal.

A lack of confidence on the part of the public or the Garda in the complaints system is sufficient to allow of a useless complaints procedure. Indeed a lack of confidence on the part of both of those groups will be certain to make that complaints procedure unworkable. I hope that will not happen. My remarks are not intended to undermine the Minister's good intentions or those of the drafters of the Bill. Rather are they made by way of critical comment in the interests of social justices for everybody.

Were one searching for reasons why the Bill should not be passed the most important, in my view, is that its provisions will bring into law what I would regard as the remaining repressive provisions of the Criminal Justice Act, 1984. This will constitute an attempt to impose law and order from above which cannot be done in a democratic State. Yet that is what we intend to do increasingly. Such law and order must emanate from the grass roots of our society, be protected by the wise usage of authority, impartial, independent and incorrupt administration of justice. That is the only way we shall achieve social justice for everybody. Failure to recognise those facts will mean that we will change from a democratic to a totalitarian State. These constitute but small steps along the way but it should be remembered that many small steps [1129] end up in a sizeable journey, in my view, in the wrong direction.

Many important points were made by Members of the House, by members of the Garda Sióchána and by the Irish Council of Civil Liberties. Unfortunately, the indecent haste with which, admittedly by agreement, the Second and Committee Stages were passed represents nothing more than a mockery of the legislative process. That is why we have ended up with ill-considered and flawed legislation which will contribute to the monumental disrespect shown for the democratic process.

I did not see anybody kicking down the doors in order to make a contribution. It is very disappointing to come into the House expecting a Committee Stage debate and not be able to contribute because of the system which we have where numbers count so much on both sides. One would have spent countless hours preparing for the different sections. I was mainly the victim of the Opposition today when they scuttled the debate. The Government did not ask for the debate to end at 11 p.m. It was to be open-ended but I heard on the monitor that it was to end at 11 p.m.

No criticism can be levelled at the draftsmen because they worked very hard. The Bill should not be passed as it stands because it will not do what it was originally intended to do. It does not allow the board to initiate inquiries into methods of policing in particular areas. That will be of great concern to people in particular localities and trouble spots. It would only be available if there was an independent police authority which is the direction in which I would like to see us going.

Another reason why the Bill should not pass as it stands is that, although a tribunal of the board is to adjudicate on complaints, its procedure is not balanced. The hearings will be in secret and that is something which always leads to suspicion and rumour. Some of these points were made in the ICCL's submission. Another reason is that the process is not genuinely adversarial since the complainant is not allowed to examine the [1130] report or cross-examine witnesses or have legal aid.

We are very good at drawing on foreign experience when it suits our argument but we do not seem to be capable of making our own decisions in relation to our experience. I do not see why we cannot use the experience both of the public and the gardaí because it is in all our interests to get this right. Foreign experience shows that in this type of hearing the complainant is placed in the same position as a rape victim and faced with irrelevant, humiliating and threatening questions. A member of the Garda will be sent to carry out an investigation. From the moment they open their door they will be intimidated. The Garda uniform intimidates many people. I do not think that even if the garda was in plain clothes the position would be changed. It is sad but that is how it works. It is a them and us situation. There seems to be a pulling of strings to protect a few. I do not know what they are worried about. It says a lot for society that the majority are a threat to a small number. That should not be. It shows a lack of faith in the homogeneous Irish, our history and all we have gone through together that we still have to drag in draconian measures and look on our own people as the enemy who must be hounded in order to protect the few.

I hope the gardaí wake up and see what is going on. They should not allow themselves to be put on one side or the other. It victimises members of the force as well as members of the public.

My comments have been made in the interests of social justice. I am not hitting out at the Garda force which is something I have been accused of because of my contributions in this House. I have not prefaced my remarks by saying what a wonderful, glorious and incredible police force we have because I talk straight. The Bill does not provide for a fair hearing for the complainant or the accused garda. It is best summed up in the words of the Irish Council for Civil Liberties who described it as a radically flawed half measure.

[1131]Dr. Woods: Information on Michael J. Woods  Zoom on Michael J. Woods  In their report the Ó Briain Committee recommended safeguards for persons in custody and for members of the Garda Síochána. They stated at page 18:

The investigation of complaints by members of the public against the Garda Síochána should be brought into line with more enlightened practice in Western Europe. A complaints tribunal with a strong independent element should be set up. We do not feel called upon to spell out how its membership should be composed, although the desirability of having an expert penologist and an experienced criminal lawyer suggests itself.

When the Ó Briain Committee recommended the setting up of a complaints tribunal I do not think they realised the complexities involved. I did not think they realised the difficulties involved in establishing a tribunal which would be acceptable and workable.

I welcome the Bill. This morning I said that all Members had done their homework on this over a long period, like the gardaí. All questions were debated openly and honestly and different points of view expressed. I have always held the view that the board, and the Garda, would benefit if a member of the force was not on that board. I still hold the view that that would be preferable but the Minister has to deal with all the practicalities and is in a position to judge the implications in relation to these arrangements. In my view we have reached a valuable and workable compromise.

When we were debating amendment No.48 on Committee Stage I was put out of the House but I will not refer to the arguments I put forward on that occasion. The contents of the Bill have been given careful consideration by all Members and we have analysed the Minister's amendments. We could continue the debate for a long time but the Bill before us represents a reasonable approach. The Garda, and the Minister, regard the provisions in the Bill as workable. Tonight the Minister went one step further and ensured that the appeal board [1132] will be totally independent. That is a valuable aspect of the procedures and I am sure it will be relied on by people in the future.

Deputy Skelly has been critical of the Bill. The Minister is anxious, now that the different aspects of the legislation have been considered, to get the Bill through the House. We face a heavy schedule here between now and the summer recess. I have been here up to 11 p.m. on many nights in recent weeks and it appears that I will have some late nights next week. I will be involved in three Bills this week and I have to do a lot of homework in connection with them. It is important that before the summer recess the Garda should be able to operate under the powers we gave them in the Criminal Justice Act because they have a difficult task in dealing with the crime problem.

From the outset I agreed that the Garda should carry out the investigations as long as there was a procedure which would allow the board to carry out an investigation independently if it was felt necessary in a specific case. The Minister has acceded to our request in that regard. We can rely on the Garda to do a good job in regard to this but circumstances may arise when it may be necessary to have an independent investigation. The board will have the power to appoint a chief executive to carry out the investigation if it is deemed necessary. That is a reasonable provision to deal with exceptional cases.

There was some confusion when the Minister introduced the Bill between the Garda Síochána (Discipline) Regulations and the complaints procedure. The confusion arose in regard to section 7 (9). When I read that section, and considered the arguments put forward by the Association of Garda Sergeants and Inspectors, I was of the opinion that an element beyond what we had in mind was being introduced. I felt we were being led into something we did not want to become involved in. I always saw a difference between the internal disciplinary code for the Garda, which I considered to be a matter for the Commissioner and the [1133] gardaí and the need for a complaints procedure for the public. I was concerned about the conduct of gardaí arising in the course of duty. I was pleased the Minister took the trouble to enter into discussions and consider suggestions put forward by the Garda. Many of the amendments we tabled today arose out of those discussions. It is clear that the Minister has listened to representations and is prepared to recognise difficulties. In that sense the process has been worth while.

We are happy with the amendments that were sought by the Association of Garda Sergeants and Inspectors and the Garda Representative Body. I am happy that their experience in this area has been recognised by the Minister today. I am pleased that the old question of the informal resolution of complaints has been included in the Bill. It was important to include that because, while people may highlight specific problems, we must recognise that many complaints can be sorted out informally. We must treat many of these complaints informally. It is no use making mountains out of molehills.

One of the most important things is that the Garda will know we stand behind them, and though we have a duty to protect the public from the occasional garda who might be erring in his treatment of suspects, we have a duty to stand behind the Garda when they are doing their work properly. Of course, sometimes when a garda goes to apprehend someone he, himself, comes in for tough treatment by a person who might break his teeth instead of walking quietly beside him to the Garda station. It is all very well in the corridors of power in Leinster House to talk about the niceties, but so long as gardaí conduct themselves in the discharge of their duties it is our duty to stand behind them and give them all the support and resources available. However, when they step outside the normal procedures laid down, it is in everybody's interest, particularly the Garda, to ensure that citizens will be dealt with fairly.

The procedures laid down in this Bill will be very helpful to the Garda. The [1134] two pieces of legislation, this Bill and the Criminal Justice Act, will provide safeguards for the public and protection for the Garda. We are now at the Final Stage of this Bill and on its passage the Minister will have the mechanism to put both Acts into operation, together providing safeguards and powers for the Minister to ensure that complaints against the force will be investigated properly.

We have a particularly fine body of young gardaí who have been recruited in recent years. They will be looking for leadership and encouragement and it is important that the Minister will provide these, and he will have the Oireachtas behind him. In this Bill the Minister included many of the suggestions, all of them constructive, which we put before him and we hope that this Bill, together with the Criminal Justice Act, will help the Garda to make major advancements in defeating crime. We hope these pieces of legislation will strengthen the hands of the Garda in the fight against crime. The security and general safety of our citizens are of utmost importance to both sides of the House.

I congratulate the Minister's officers on the way in which they have contributed to the process of passing this Bill through the House. They have done great work in pulling together the strands of the various debates that occurred not only in the Oireachtas but outside this House. These officers are very often forgotten, but we must remember that they keep a very good bureau, an excellent filing system which they are able to bring to our assistance quickly during the different Stages of a Bill. Their work frequently goes unrecognised.

We can see their work in the Ó Briain report of 1978 and those responsible for that report would be proud tonight to see this measure being passed in its comprehensive form. We all hope the measure will work when put into practice. I congratulate the Minister on the positive attitude he took in regard to the proposals put before him by all sides.

Mrs. Barnes: Information on Monica Barnes  Zoom on Monica Barnes  This is the last chapter [1135] of this very important Bill. We had a worthwhile in-depth debate inside and outside the House and all of us have learned much from it. I learned a tremendous amount about the different stages of drafting legislation and I join with Deputy Woods in acknowledging the work done by the Department's officers.

I welcome the Bill but with somewhat mixed feelings. It is something we have worked for since 1978 or since the publication of the Ó Briain report started a discussion and a debate on the matter. With the operation of the complaints board and the safeguards we have introduced, the extra powers under the Criminal Justice Act will be implemented. I hope that what we have done here will achieve the necessary balance and provide the safeguards we believe are necessary.

This debate did not take place in a vacuum. Many things were happening outside that caused the public to believe both increased powers and the complaints board were needed. I repeat what Deputy Woods and Deputy Skelly said, namely, that we should have preferred if the complaints board were completely independent. We were afraid the board might not be perceived as being impartial. That is something we will monitor as time passes and as complaints are processed. I hope the amendment by the Minister will ensure that the board will be completely impartial.

I ask that there be the widest possible representation of expertise and experience in the membership of the complaints board. That board will consist of a chairperson and six members. I hope that both sexes will be represented on the board.

Section 2 (6) of the First Schedule states:

Where a casual vacancy occurs among the members of the Board, the Government shall, as soon as may be, take such steps as are necessary to fill the vacancy...

I hope such vacancies will be filled as a matter of urgency. Above all else, we [1136] must ensure there is full access to the board and that full information with regard to such access is made known to the public. It is essential that the board be seen as open to everyone and that information be distributed to all levels of society. People must be made aware that the board are not elitist but that access is open to all and that it is a matter of right rather than privilege, for people to appeal to the board when they have a complaint.

Deputy Skelly expressed some fears with regard to confidentiality. I hope that we will have not only reports from the board but perhaps also have a monitoring system. I take the point that in certain sensitive cases people may not appeal to the board if they are not certain with regard to confidentiality. That is a human response and it must be taken into account. The human perception of how the board will work will be a major factor. We must have an assurance they will work in an objective and impartial way and I suggest that some kind of observer cum researcher might be attached to the board to study their operations and procedures. Thus, in an impartial way that person could report to the public on the matter.

Members of this House have concerns and fears that the board may not work in the way we would wish. We should leave ourselves open to the prospect of making changes where they are needed. I would like to believe that we are not closing the door to the matter but are leaving it open to make any necessary amendments in the light of the monitoring I mentioned.

I hope the board will have the structures and facilities necessary to allow them to work in a practical, open and just way. This will ensure that the gardaí are not seen in a “them” and “us” light. I should like members of the Garda Síochána to realise that their rights are also being safeguarded as well as the rights of the public. Thus, out of this long debate I hope will come a sense of community because if this debate showed anything it showed us that what we need is that sense and a sharing of responsibility. We should not try to offload responsibility to the Garda Síochána and ask them to carry [1137] the burden of all the complexities and difficulties in society. It is my hope that out of that shared responsibility will come the kind of society we spoke about so passionately in the debate.

Minister for Justice (Mr. Dukes): Information on Alan M. Dukes  Zoom on Alan M. Dukes  I should like to begin by thanking Members of the House for their work on this Bill. As Deputy Skelly and Deputy Woods pointed out, the work did not start with the publication of this Bill but goes back even further than that. I am sure my colleagues on this side of the house will allow me to express particular thanks to Deputy Woods for the way he approached the Bill. I can assure the House that not only has the Bill got a combing but the Minister also got a combing which is sometimes as important.

Seriously, the Bill has demanded much from the House and the House has given it. For a long time Deputies on this side have put a good deal of research and thought into the provisions of this Bill and connected provisions in other Bills recently before the House. The House has done an extremely good job. In spite of what some members may think about the Bill, I conclude from the debate that the House has taken its responsibilities seriously and has carried out its duties with proper care for the implications of what it is doing. I do not share some of the more gloomy views of the Bill which have been expressed, not because I am a natural born optimist or that others are natural born pessimists but because of the balance we have built into this Bill and the relationship that exists between this Bill and provisions—I was about to say other provisions—in the Criminal Justice Act.

This Bill is at its Final Stage in this House but that is not the final stage of the Bill. We have another process through which I will have the pleasure of going, but other Members will not.

Dr. Woods: Information on Michael J. Woods  Zoom on Michael J. Woods  I am sorry we will not be with the Minister to support him.

Mr. Dukes: Information on Alan M. Dukes  Zoom on Alan M. Dukes  I will not be tempted to [1138] wish that the Deputy could be with me because that would be churlish, but perhaps another day. As I said, the Bill has passed through this House and it is my concern to have this Bill and the regulations for the treatment of persons in custody in place and in force during the summer of 1986 so that we can bring the complete package into operation because it is important that that be done. I will direct my efforts to bringing about that result.

In many ways this Bill breaks new ground. It provides the framework and the instrument by which the general public, our neighbours and citizens, can make known any complaints they may have about the Garda Síochána and can see that those complaints are taken seriously, whether they are dealt with informally as provided in section 5 or formally as provided in section 6. I know there are difficulties and that a great many people for one reason or another find a certain amount of difficulty in making contact with officialdom. It is important that I put on the record that there are people who, even with the structure set out in this Bill, will find some difficulty in bringing themselves to the point where they will make a complaint. This is not something that is peculiar to dealing with the gardaí. We all know there are people who have difficulty making contact with officialdom, whether it is applying for a medical card, making a complaint about a member of the Garda Síochána, complaining about an ESB bill or anything else. We meet these people every day.

Without wishing to be contentious, I would like to say that, like Deputy Skelly, I represent a constituency with a population of over 100,000 people but, unlike Deputy Skelly's constituency, it has a large rural element. I might be forgiven if I say it often seems that my constituency is more a microcosm of Irish society than any other constituency because of the particular balance between urban and rural in Kildare and the fact that large parts of the county are becoming outlying suburbs of Dublin. There are a great many people in my constituency who [1139] have difficulty in making contact with officialdom. I do not say that because we are talking about a Garda complaints Bill but to put the matter in perspective. Very often we find that people who have difficulty in nerving themselves to go to a Garda station or to write to the complaints board would have as much difficulty in applying for a medical card or complaining about their ESB bill. That is not something the Garda Síochána will be able to cure or that a Garda complaints Bill on its own will be able to cure. There is a wider dimension to this and I do not intend to venture into it now.

There are other people who, because they are dealing with the Garda Síochána, may have difficulty in approaching officialdom in the form of the local superintendent or inspector to make a complaint. It is for that reason that we have left it open to any member of the public to get whatever assistance he or she may require and to ensure that the complaint when, and if it is made, is signed by the complainant.

We had a discussion this afternoon about the kind of assistance we might expect people to have and what provision we should make in the Bill for it. I was against specifying that people might get the assistance of a doctor, a teacher, a peace commissioner or any other other group Deputy Woods proposed, but I am not ruling out the possibility that people may wish to get assistance from that kind of quarter to help them make their complaint. The board will have the power to investigate complaints properly and fully. I am not alone in this House in saying that the structure we have set up will allow both the general public and the Garda Síochána to be confident that these complaints will be properly and fully investigated.

I know from his remarks about matters which passed between Deputy Woods and myself while Deputy Skelly was not in the Chamber this morning, that Deputy Skelly uses the monitor. I would ask him not to hold it against me that I too use the monitor—it is some time since I discovered the usefulness of [1140] the monitor. He should not feel very aggrieved that I use the monitor as he does. Deputy Skelly may have spent a lot of time here on Second Stage, but I spent a lot of time here on Committee Stage, and unfortunately, I seem to be making other Members spend more time on Fifth Stage than is normal, but there are some points that need to be addressed.

I do not intend to go over all the arguments again, except to say this about the system of investigation we have set up. This afternoon I spoke about the necessity—and I am not alone in taking this view—to ensure that complaints against the Garda are investigated and dealt with in the same way that complaints against any other member of our community are dealt with. There would have to be very solid reasons for making an exception of the Garda, providing that complaints against them would be dealt with in a way that would not be used in relation to any other group in the community. If we insist on the principle that there should be this great difference, then we run the danger of suggesting that we do not have any confidence not in the way Garda are investigated but in the way crime and wrongdoing are investigated. I am sure that is not the intention of anybody in this House who disagreed with the proposals in this Bill in relation to the system of complaints, and I do not agree with the suggestion that the members of the Garda will be particularly upset at the prospect that complaints against them would be investigated by their colleagues in the force. That is what happens now and I have not heard that there have been a great number of complaints from gardaí that complaints against them now and even disciplinary procedures taken in relation to them now are dealt with by other members of the force. Therefore, let us not put up imagined obstacles by not looking at what happens now and projecting them into the future.

It is suggested, or the impression still seems to be about, that complainants will not get a fair deal in the hearing of their complaints. Deputy Skelly put this in a particular context when he said that the complainant would be put in the same [1141] position as a rape victim, that the intimidation would start with the appearance of a uniformed person on his doorstep. I do not agree with that. If a complainant is likely to have that kind of difficulty in dealing with a garda it is at least open to supposition that the same complainant would have the same kind of difficulty if we had this special independent corps of investigators who were being talked about earlier today. Of course I realise that a great many people feel a certain reticence when the law appears on their doorstep, but ideally those who have a complaint to make about the Garda should do themselves the favour of following through the complaint they make, using the instrument that is at their disposal, and have at least the beginnings of the confidence required to say that here is a system which they as complainants are making work and are using, a system that was set up deliberately to give them the opportunity of making complaints through a means on which they could rely.

As far as providing a fair hearing for the complainant is concerned, the Bill provides specifically for the notification and the presence of complainants at various stages in the complaint and for the communication to the complainant of what has been concluded. No further development of that has been suggested during the debate. No other means that could help the complainant further have been put forward during the debate. Indeed, what we have provided for in the Bill will give a real, concrete access to people who have a complaint to make through the system by which those complaints are being processed.

I am sorry if sometimes I seem to ignore Deputy Skelly and sometimes I seem to concentrate on him. That is the luck of the draw. I make remarks about points made by other Deputies without identifying them, but since Deputy Skelly is up there at about eye level I take up the point that he made because it is important. He said that the board cannot initiate inquiries into levels or methods of policing in particular areas. Of course, he is perfectly right for the simple reason [1142] that it is not the function of the board to initiate inquiries into levels or methods of policing in particular areas. The board are being set up to provide a mechanism by which complaints about or against the Garda can be processed satisfactorily. The board are not there to do any other job. I hope that they will concentrate on doing the job that we set them up to do, and I am quite confident that they will. It is not relevant to criticise them for not doing something that they are not set up to do.

Deputy Barnes in the general context and against the general background of this Bill and the other measures that we have been talking about, raised the question of monitoring the operations of the board and asked whether we have a means of ensuring that we know what is happening. Of course we have, because it would be a responsibility of both the Minister for Justice and this House to monitor what goes on in the board. The board are under an obligation to make reports to the Minister who in turn is under an obligation to bring the reports before the House so that the House will have from time to time occasion, if it wishes to take it, of discussing the operations of the board. Members of the House also have all of the other expedients which they try anew every day on the Order of Business—sometimes successfully, sometimes not; sometimes in an orderly fashion, sometimes not—but we have all of these instruments at our disposal to bring out the concerns that Members of the House have about the operations of the board and how they are doing their job and of inquiring about just what is going on and whether we are getting the results from the procedure that it is expected to give.

With that, again I thank the House for the combing it has given to this Bill. It is probably an eloquent enough testimony of the close scrutiny that the Bill got that we had 66 amendments on Committee Stage. Personally I regret it if any Member of the House felt that the Bill was dealt with with any alleged indecent haste. My intention is not at all that things should be done with indecent haste. [1143] Neither is my habit to drag things on for longer than they need to be dragged on——

Mr. Skelly: Information on Liam Skelly  Zoom on Liam Skelly  What about Second Stage?

Mr. Dukes: Information on Alan M. Dukes  Zoom on Alan M. Dukes  I am not at all convinced that the Second Stage debate, even on an important Bill, should go on for five or six days. I do not intend to go into that any more. I regard as a rule on occasions like this that if something can be said in ten minutes there is no point in going on for half an hour and saying it. Again I thank the House.

Question put and agreed to.

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