Tuesday, 25 September 1984
Seanad Eireann Debate
“, provided that each of the following sections, namely, sections 4 to 6, 8 to 10, 15, 16, 18 and 19 shall not be brought into operation until a complaints procedure involving an assessment by an independent person or tribunal has been established and until the regulations referred to in section 7 of this Act are in force.”
This amendment is tabled in order to ensure that the particular sections of this Bill which give rise to very understandable and very reasonable concern in a very wide sector of the community would not be brought into effect until two things had happened: first, a complaints procedure involving an assessment by an independent person or tribunal has been established, and secondly, until the regulations which are referred to in section 7 are in force. When the Bill was first circulated almost a year ago there was accompanying it an explanatory memorandum in which it was expressly stated — which was an unusual but welcome commitment — that the provisions of the Bill which increased the power of the Garda Síochána, would not come into operation until a ministerial order to that effect was made and that that would not be done until such a complaints procedure involving assessments by an independent person or tribunal had been established.
There may be some Members of the House who feel that that is enough, that it is not necessary to have that included as an amendment in the text of the Bill itself but we are all aware that the life of Government is unpredictable in modern Irish circumstances and in a way that cannot be totally free from speculation  a particular Government under modern Irish circumstances may come to an end, and there may be a general election. That explanatory memorandum has no binding effect on any subsequent Government, whether of the same party or parties or of a different party forming the Government. It is an extremely important commitment and a very serious one which goes quite a long way to reassure people who are very understandably and reasonably apprehensive and worried about the potential dangers inherent in this and the increasing power without having a proper complaints machinery. Therefore, I hope that the Minister will be prepared to accept this part of the amendment to which, in practice, he has already committed himself. He as the present Minister for Justice, and the present Government, through the explanatory memorandum accompanying this Bill, have committed themselves to what is sought in the first part of this amendment. The second part, which is the second factor to be taken into account before these particular sections which very substantially increase the powers of the Garda Síochána and, therefore, increase the potential risk which must always be there and must be recognised as to the abuse of these powers, is that those sections will not come into effect until the regulations referred to in section 7 of the Bill are in force.
In making my contribution to the Second Stage debate I paid particular attention and, indeed, paid tribute to the Minister, for introducing, by way of amendment, section 7 and for taking the power to make the regulations referred to in section 7. If I may remind the House, section 7 enables the Minister to make regulations providing for the treatment of persons in custody in Garda Síochána stations. Therefore it goes beyond the scope of the particular provision in question. It is a general provision and one which I welcome because it should have been there many years ago. We badly needed regulations setting down standards for the proper treatment of persons in custody.
When replying to the Second Stage  debate the Minister referred to, and appreciated, the welcome which this amendment had received and the fact that it added to the safeguards in the Bill. He also referred to the fact that the section has within it a role for the Oireachtas because section 7(5) states:
A draft of every regulation proposed to be made under this section shall be laid before each House of the Oireachtas and the regulation shall not be made until a resolution approving the draft has been passed by each such House.
The Minister — as in my view quite correctly he was entitled to do so — took a certain bow that he was giving an affirmative role to the Houses of the Oireachtas. He was not just laying it, subject to the possibility of an annulment which, of course, would require a majority of Senators or of Members of the other House voting against it which is unlikely in the balance of our parliamentary tradition, but by laying it in draft, subject to an affirmative vote, he gives a positive role to the Houses of the Oireachtas of examining and ascertaining whether they are satisfied with the scope of the power to make regulations. This is very welcome. It also has built into it a possibility of some delay. The Bill, as it stands, requires the Minister to make those regulations but he must lay them in draft before both Houses. If, for example, the first draft is not acceptable for one reason or another or if there is a delay in processing it, it could be some time before the particular regulations were adopted and the Minister is not entirely in control of that.
It is very important that we realise the value to be placed on these safeguards. This is a very difficult and a very sensitive Bill and the safeguards that accompany it are an extremely important part of the whole debate on crime in our society, on criminal justice and on the balance we want to have between civil liberty and the sectors of the community against whom the powers we are conferring on this Bill are going to be used. Generally speaking they are both the sectors of the  community who are more deprived and the age groups who are least able to assert and, in circumstances, defend themselves against the possible abuse of power. Therefore, the importance of the safeguards and the monitoring which we are seeking to introduce in this Bill simply cannot be overstated or overestimated. It is a very modest and minimal proposal to include in the Bill a guarantee that the provisions which go very far in extending the powers of the Garda Síochána will not come into effect until there is enacted a Bill, which the Minister told us in his reply on Second Stage is now ready and coming before the Government for approval, establishing the necessary complaints machinery and, secondly, before the whole process of enacting the legislation, which is not within the sole control of the Minister but which requires the positive vote of the Houses of the Oireachtas, has been completed. Then the question of allowing these provisions to come into effect would be at least done with the maximum scrutiny and safeguard which we could have at our disposal.
Up to now I have been talking about the thrust of this amendment and its context. Let me now relate it in a more general way to what this Bill is all about. In doing so I would like to refer to a comment made by the Minister when replying to this debate on Second Stage in which he referred to a passage from my contribution on Second Stage when I queried the identification of the crime problem. I had quoted Barry McAuley, a very noted and wellregarded Irish criminologist and lecturer in criminology in UCD, and I had referred to his questioning of the way in which the crime problem is defined. The Minister in the way in which he replied to that implied that I was not recognising that there is on the ground both evidence of an increase in crime and a quite remarkable increase in fear and apprehension particularly in vulnerable sections, in the older age groups, in people living alone in rural or exposed areas and certain parts of cities where the  incidence of crime on the ground is more prevalent.
At the time I interrupted the Minister briefly and I said that I would have my opportunity on Committee Stage to refer to this. I think this an appropriate point at which to refer to how we examine and, in a sense, define the crime problem. That is not in any way to take away from the first-hand experience of most Members of this House or of anybody involved in representative politics. Anybody who has been on the doorsteps in recent months or years is very well aware of the vastly greater fear and apprehension of a much greater number of incidents of crime which are reflected in some measure in the crime statistics. One is aware also — the Minister referred to this — of a certain hysteria that can be whipped up and certain media comments on it which tend to whip up further fears. Nonetheless, the underlying fears are there.
I have been pointing to an extremely important objective factor in all our discussions on this Bill, that we have a crime problem which is more directly related to the age structure of our population than to almost any other consideration. It is the very fact that we have a young, growing population. We have young people within the age bands of however young one want to make it, 14, 15 to the late twenties, and I am thinking in particular of the profile of males of that age where there will be, as is recognised by criminologists, a higher incidence of crime than if the age structure were different and if we had an older or even perhaps a younger population. A younger population would postpone the time when this would be the case. It is extremely important in looking at this Bill and in considering the balance we are trying to strike in it that we recognise that we have in Ireland not only a very young population which we must feed, clothe, house and educate and that we must plan our whole economy to ensure that we get the positive aspects and possibilities of that available to our young people, but we have also for this objective reason a crime problem in the sense of a predictable incidence of a higher crime rate than  we would otherwise have. We must take measures, apply ourselves particularly in communities, in policing on the ground, in various other ways, in the kinds of support and equipment for the Garda whether on the beat or for detection, but we must not be panicked into eroding the fundamental core of civil liberties.
In this regard, we must be prepared to look at the situation in other countries, and the country which at the moment is most clearly proving the well-recognised phenomenon that I have been describing is the United States where at the moment there is a marked decline in the crime rate. One thing that is very much discussed in both the media and various legal research journals is a very notable decline in the crime rate however you examine the figures for serious crime. For crimes against property, for crimes against the person, whatever the breakdown may be, there is a marked decline. Why? Because the age profile in the United States has changed. They have got over their baby and child bulge. The post-war baby boom has now grown beyond the age of being to the same extent susceptible to, liable and predictably likely to give rise to the kind of crime levels that they had in recent years. It has not to do with any swing to the right in America, because the swing to the right has also polarised communities and the poorer are worse off under the Reagan regime whilst the better off are doing better, so in many ways that kind of a swing would be more likely to promote crime. That is not what has been identified to be the main factor. It is this much more objective consideration of the age of the population, of the potential for being involved in incidents which are anti-social, crimes of various kinds, of young people, particularly male youths, in the age bracket that I have mentioned. If we accept this — I would urge the House to have regard to the extent to which this is recognised by criminologists right across the board, who may have different solutions to the problem but they certainly recognise this — then we must be extremely careful not to be panicked into eroding the core of civil liberties, the balance between the individual  and the authority within the system which would be reflected in the Garda and the powers which we confer upon the Garda Síochána.
I will be proposing further amendments subsequently which will seek either to remove some of the continuing worries about this Bill or introduce further safeguards in relation to particular sections. However, from the beginning we should realise how important it is not to introduce and bring into law provisions that substantially increase in a new way the powers of the Garda until we have ensured that there is in existence the monitoring of the complaints system, and until there is in existence and in operation the safeguards of the regulations which go a considerable way to implementing both the criticisms and the suggestions of the Ó Briain report and which must be in operation before these operative parts of the Bill come into effect.
The Cathaoirleach has ordered that the two amendments be taken together. The first part of amendment No. 2, in the name of Senator Eoin Ryan, is very much seeking to achieve the same objective as the first leg of the amendment I just moved on behalf of Senator Higgins and myself. If the question is one of wording I could safely say that we would be quite prepared, perhaps on Report Stage, to accept a different wording of it in whatever way is thought to be most appropriate to achieve the objective but I would wish to have the double safeguard that the provisions would not be brought into effect until both the complaints machinery and the regulations under section 7 have been brought into operation. That is fundamental to the amendment.
Mr. M. Higgins: I should like to add one point to the amendment as moved by Senator Robinson. First, reflecting on the Minister's reply to the Second Stage debate, the argument is made again and again that the balance of the Bill has been got right. I might be unfair in saying that that is in his reply speech because it is emphasised in extenso in his speech to the Seanad on 11 July when introducing the Second Stage. This theme has been taken  up in a number of newspapers commenting on the Bill. The Irish Times, for example, on 19 October 1983 headed its editorial, “Is the Balance Right?” This question as to the balance of the Bill is crucially affected after the simultaneous introduction of the safeguards of which this amendment speaks, and the Bill itself. I am in the position of having opposed this Bill because I believe, and still believe, that it is an inadequate and partial response to the crime problem. The Second Stage having been passed, and the prognosis being that the Bill will make its way through this House, it behoves us to question the arguments of those who have been advocates of the Bill. I cannot see how one can take refuge in an argument about balance if, at the same time as bringing this Bill into effect one does not give details of the complaints procedure in detail and make the regulations to which the amendment refers.
At this stage I want to correct one or two points. I was at pains in my Second Stage speech to point out that Members during the Second Stage debate would no doubt identify those who were for the Bill and who wanted to do something about what was regarded as a publicly perceived crime crisis or as, indeed, the Garda Review and many others, in their June 1984 issue called it, “the crime wave”. We submitted that concept of the crime wave to some analysis. I am grateful to the Minister for correcting in his summary speech at the end of Second Stage those who would have suggested that those of us who are critical of this Bill and this approach to crime are, in fact, only concerned about the minority of the population who are, in fact, involved in criminal acts. I appreciate that correction of the attribution of motive to those of us on this side of the House who have spoken against the Bill during the Second Stage debate.
In that Second Stage debate I made the point also that we were not introducing a fallacy that each individual criminal was motivated by socio-economic circumstances or by their individual circumstances of poverty because, obviously,  people who were poor and who were not involved in crime were clear refutations of that. I explictly made the point with some emphasis that there was a connection between socio-economic circumstances and unemployment and fluctuation in the crime rate. I find it necessary to repeat that because it is relevant for amendment No. 1. We need the safeguards we speak about in our amendment, particularly in the absence of these arguments being taken on board. I am willing to accept the Minister's statement in good faith that the Bill itself is not a total response to crime as he perceives it but we are entitled to the evidence that it is not. If the Bill is to stand in isolation from safeguards that may be introduced ex post facto it must be, and will be, perceived by the public as a single instrument, an instrument that is brought in in a certain atmosphere.
I should like to reinforce another point that Senator Robinson has already made and it is necessary to make this point to the level of being tedious about it. It is that there is an argument within the community of criminologists here as to the state of the criminal statistics. I would draw a distinction between statistics on crime, for example, as published, and the real rate of crime, including unreported crime which I dealt with on Second Stage but, more particularly, the extent to which the perceived crime rate has become inflated because of the moral panic which has been created in the community, very often because the media heighten individual criminal acts and so on. We cannot have it both ways. If we argue from the premise that we must give the public some assurance, even if they are unreasonably afraid of crime, at the same time we must go back to that population and construct what their estimation will be of the Bill as introduced, separate from the safeguards to which the amendments make reference.
My argument in favour of this amendment is not simply offered from a civil libertarian framework because it is not a matter of the rules having been changed and that we need some assurances of new guarantees because the rules do not affect  us all equally. The Bill, if passed without this amendment, will affect disproportionately those who are in the lower socio-economic groups, those who are disadvantaged, those who have least facilities for being articulate and those people who are in a more than average way afraid of the abuse of new powers separate from a complaints procedure and from new regulations. There are those who are reasonably afraid. Evidence was provided during the Second Stage debate that would to my mind clearly emphasise the importance, if we are to take seriously the argument that this is to be a balanced piece of legislation, that it is not a measure that will stand on its own and that it is to be some kind of a contribution towards solving the perceived disabilities that the Garda have, that they suggested they have in one editorial after another in the Garda Review, and if it is to address itself to the fears of the community. May I make the point as to why I apparently have caused so much irritation by making reference to the need for a White Paper on crime? If I was to evaluate the contribution that this Bill with safeguards was to make to the crime problem it would have been of assistance perhaps to my simple mind to have had the experience that exists among the professional community of criminologists here and many others, those who work with the unemployed, presented in a White Paper. Then we could have assessed the impact of the Bill in that way. That is the general thrust that we might have had but, specifically, we could have been able to know the procedures, the specific applications and achievements of the Bill if we knew the section of the problem towards which it is addressed.
At this stage I am unsure as to whether there is even a recognition within those responsible for managing the crime rate and reducing it or that there is a detection crisis. Is the Bill then addressed to this crisis of detection or is it addressed to some vague conception that it will reduce public fear or apprehension, some real and some exaggerated? The White Paper would have assisted us there. It would  also have made reference to the Ó Briain committee and, going back to the purpose of the amendment, it would have enabled us equally to assess the impact of this legislation without the safeguards. Now we have to assess the appropriateness of amending it in this way or not without any general assessment of the impact of this instrument along with others that might be disregarded or given less weight.
If the Bill goes ahead and is introduced without the two safeguards which Senator Robinson adequately summarised, namely, a complaints procedure and published regulations, there is no doubt whatever that the very vulnerable groups to which reference was made on Second Stage will correctly see the Bill as something that is out of their historic experience of dealing with those who enforce the law, something introduced without observable immediate safeguards.
More experienced legislators than I in this House can perhaps make the case for the general principle of introducing ex post facto limitations and conditions on legislation which crucially changes the relationship of the community, individuals and the law. For my own part as someone who does not practise law, I would regard any document coming before me as a piece of legislation for a vote as having to satisfy in an integral way certain conditions.
As a lay person looking from the outside at human rights in other countries, I have looked at law coming into existence justified either by particular circumstances of the day or circumstances of a particular country and the suggestion being made that their temporariness is, in effect, something which justifies them, but more important, that qualifying conditions would come later. History is against that practice. There may be technical reasons for the complaints procedure and regulations not running in the same way with the Bill, but these technical considerations are completely over-ridden by the danger of the Bill without this amendment being passed as law and being perceived by those who are  affected by it as an unqualified instrument that makes an ingress to their lives.
Mr. E. Ryan: My amendment merely deals with the complaints commission. The Cathaoirleach has very kindly allowed me to deal with the question of regulations in regard to custody at a later stage. We must look at this Bill with a sense of balance. There are very few people who would say that they are completely for this Bill or completely against it. Everybody who is prepared to support this Bill supports it with a great deal of misgiving, that is to say, supports certain sections of it with a great deal of misgiving. There are also many sections which are quite acceptable.
Section 4 is one which we will have to approach with a great deal of misgiving. We will have to look back on the history of what has happened in the past, of the situation which over the years was carried on without any legal sanction, of questioning people in Garda stations. As it turned out there was no legal justification for that but the fact is that certain things took place when people were being questioned, that that situation was abused, and not merely abused because it should not have happened at all but abused even within what was being done. Consequently, when we are asked to introduce a situation where that is going to be legal and lawful, we will have to ensure that what is done is done with the greatest possible reservations, with the greatest possible precautions. The principal precaution is to have some kind of a complaints commission which will ensure that if the process is abused in any way the matter can be dealt with properly by an independent commission.
Many Members of this House and the other House and members of the public who are willing to go along with this Bill, although with considerable misgivings, are only doing so on the basis that there will be machinery for investigating any abuse of what is being made possible under this Bill. What we are dealing with  at the moment is the question of a complaints commission. It is an essential corrolary of this Bill and without it a lot of people would not go along with the Bill at all.
One of the principal misgivings people have about this is the fact that we are now going to have a situation where children aged 12 years are going to be detained and questioned in a Garda station. That is something which is almost inconceivable. The only reason we have to agree to it, and agree to it with reservations, is that the Minister has given some rather alarming statistics to show that many children of that age have been found guilty of offences, that much of the crime that has been committed has been committed by children of that age. We cannot ignore that, we cannot shrug it off. We have to recognise that is a fact of life and consequently we have to accept that this particular provision regarding detention and so on will have to apply to children down to that age. That makes it all the more important that we have a complaints commission to deal with any abuse that may take place in the situation we are going to provide for under this Bill.
The Minister has said that it is the intention of the Government to introduce a complaints commission. I accept his bona fides in that regard but the Minister may not be there when the time comes to implement that complaints commission. Only a few years ago we had three changes of Government within 18 months. It is quite unsatisfactory to accept the undertaking of the Minister even though we may accept the bona fides of the undertaking he has given. He may not be there or the Government may not be there to ensure that a complaints commission is introduced. Consequently, the only way to deal with this in a satisfactory way is to have a power or provision written into the Bill to say that the provisions of the Bill shall not come into operation, or certain sections in the Bill, until the complaints commission is there.
When the Minister dealt with a somewhat similar amendment in another place he said that the matter had been “sprung” upon him — or some phrase of that kind — and that he was unable to accept it at such short notice. That is almost three months ago and it seems to me that there is no reason whatever at this stage why the Minister should not have had ample time to look further into the question of the form and terms and so on of a complaints commission and there is no reason why he should not be in a position at present to accept an amendment on the lines of the amendments which have been put down to this Bill.
It has been said by other speakers and by me that it would be impossible to accept this Bill unless a provision for investigating abuses is written into it. We risk a situation where we might have this Bill as it stands and end up with no complaints commission or an inadequate complaints commission. After all, what the Minister has said is an undertaking to bring in a complaints commission. We do not know exactly what that might be. We do not know what it might eventually turn out to be. As I said, Ministers may change and Governments may change, and we might end up with something that was absolutely inadequate to deal with the very serious situation that we are bringing in under this Bill. Consequently, in view of the fact that the Minister has not objection to a complaints commission, that he has given the commitment, that there has been plenty of time to prepare and draft it, and in view of the fact that it is such an important element of what we are proposing to do, I find it difficult to see why the Minister should not accept an amendment on these lines.
Mr. O'Leary: The amendments before the House express the views of the Members involved and the views of many other Members also with particular reference to the capacity of Ministers for Justice to stand up to pressure outside the House once the Bill has been enacted. We will assume that the Bill will be enacted and, in due course, the Minister of the day will have to consider which sections to bring into operation at which time. We are talking in particular about the sections identified in both amendments. As reported at column 1611 of the Official  Report, in the other House the Minister has given certain commitments which no doubt he is quite willing to repeat here. He said:
There is a commitment not to bring increased Garda powers, mainly the detention provisions, into being until the new complaints procedure has been brought into operation. As well, regulations will have to be made in regard to the treatment of persons in custody...
As Senator Eoin Ryan said, the problem arises in that this Minister may not be there indefinitely. The Minister might help us in this regard. To what extent is another Minister of this administration or, alternatively, a Minister of a new administration, under an obligation to fulfil undertakings given before the enactment of legislation in both Houses of the Oireachtas? I suspect he is under no obligation to fulfil them. Imagine the situation that might arise in the event of this Minister deciding that the provisions of the Bill would not be brought into operation because the complaints procedure had not been agreed with the representatives of the Garda Síochána. If negotiations were taking place, based on the information which I gave in my Second Stage speech, it is reasonable to assume that the agreement of the representatives of the Garda Síochána will not be easy to get. That will be difficult for the Minister to achieve and I wish him well on it.
If that period of discussion between the various parties is in train, and if some outrage takes place with regard to the security situation in the country — it may be an outrage to do with the Provisional IRA or it may be an outrage to do with professional criminals; it may be a bank robbery in which some individual is horribly killed — would there not be an overwhelming temptation for this Minister or any other Minister who might replace him to say immediately after such an event that he was bringing the provisions into operation? Even if he resisted that  temptation, surely the pressure that he would have to stand up to from the representatives of the Garda Síochána would not be capable of being resisted.
For his protection and for the protection of his successors, the Minister should give serious consideration to putting into the legislation what he has already agreed in practice to do. Whether this is the right way of doing it, or whether this is the right formula of words, as Senator Robinson has indicated, is not the important point. The important point is to get the concept enacted or to put into the Bill that these sections will not be brought into effect until certain things happen.
Obviously the first amendment referring to an independent “complaints procedure involving an assessment by an independent person or tribunal” is probably too vague to write into a statute. I do not think you could write it into a statute as it is too vague. I should like to encourage the Minister to enact what he has already indicated he is going to do and to give himself and other Ministers the protection of being able to say; “I cannot do what you ask until you agree to a complaints procedure or alternatively until the regulations under section 7 are in force”. The Minister should give very serious consideration to the thoughts behind these two amendments, because they will protect him in the difficult job he will have to do in deciding when to introduce the various sections of the Bill when it is enacted.
Mr. B. Ryan: Not for the first time I share with Senator Higgins a very profound antipathy towards this legislation and, indeed, I seriously considered doing nothing except arguing about the existing provisions. That would be failing in my responsibilities. The Minister made a very positive response in the Dáil to reasonable criticism. I hope we can anticipate an equally positive response here and that we will not, for instance, get any indication from the Minister that the sum of all wisdom was contained in the Dáil debate and we are now simply going  through a formality. We are entitled to expect a similar positive response.
It is regrettable that, at this stage, no ministerial amendments are being indicated and that none was adverted to in his Second Stage speech. I agree that it does not really matter which form of words we have to deal with this question of an independent tribunal. I also agree that it would be preferable to have an independent tribunal written into the legislation, and the need for it as a condition of the implementation of the other provisions of this Bill. It is worth reminding this House that there was a famous occasion on which a large section of the Dáil changed their minds about their attitude to a major piece of legislation because of one incident of a very nasty nature one night when a whole party virtually changed their minds about opposing a Bill to a position where they supported it.
I am too long in politics at this stage, however brief my stay, to believe that there is any such thing as an absolute promise from any of us to anybody about anything. No matter how we do it, or how we say it, or how we write it, we all have a qualification written in somewhere. I am attributing this to myself as much as to anybody else. We all live in a world which approves of compromise, which accepts the fact that, when one is dealing with the situation as it exists at a particular moment, one can only give commitments based on the situation as it exists at that particular moment and one always either consciously or subconsciously, either overtly or implicitly, presumes that one will be able to, or entitled to, qualify one's response or, one's commitment on the basis of entirely changed circumstances. Therefore it is difficult to understand why what the Minister assures us is a cast iron commitment cannot be written into the legislation. I am very interested in and will listen with great care to the Minister's reply.
There are a number of reasons why the Minister should be protected from the pressures that could be put on him in the event of this Bill being passed without an amendment in the form that has been  presented here. There are political pressures that could be brought to bear on the Minister, particularly by those who dismiss all of us who are concerned about this Bill as being somehow do-gooders. I should like to quote from a contributor to the Second Stage:
If you want to make a name for yourself you must champion the cause of the under-privileged. The under-privileged, in the main, occupy the category of people who do not want to work and anything they get, they want to get it for nothing. If they cannot have it, they just take it by force or any other way.
Senator McDonald said that on Second Stage. He is a member of the Minister's own party. I can imagine what Senator McDonald's response would be if there was, in his view, an inordinate delay to satisfy us liberals on the question of a complaints procedure etc. or those of us who apparently must apologise for being concerned about the under-privileged to whom Senator McDonald attributes so much.
I will refer again to something I quoted on Second Stage because the Minister suggests that some of our fears are exaggerated. He said that minority groups of one kind or other had no reason to be worried about the Garda. I will come back to what minority groups might or might not think of these amendments in a moment. I quote again what a Garda superintendent said about the travelling people:
Well, itinerants are a fairly big problem and are pretty difficult to deal with because they are mobile, a lot of them have similar names; they look very much alike a lot of them because they are related family wise and so on and in the city particularly the crime is committed by the juvenile element mostly, the adults have a tendency to move out the country into the rural areas and remote places and commit very serious crimes particularly on old people living alone and so on.
Any person who is in any vulnerable or  suspect under the law or in any way comes into the category of being less than a thoroughly acceptable citizen will have reason to be worried. The Minister may assure me that nobody has reason to be worried and he may assure me that he is interested in any complaints I have and will deal with them personally. He has a letter from me since 15 May about that quotation from a Garda superintendent to which he has not yet replied. My dealings with the Garda Commissioner on that were similarly unsatisfactory, the conclusion being that the Garda Commissioner informed me he had not seen the programme and, therefore, could not comment on it. Therefore, presumably in any case of abuse by the Garda he would say he was not in the Garda station and, therefore, could not comment on it. I do not understand it. Judging by that and by what I quoted earlier, plus the continuing understandable public concern about crime, plus the fact that the complaints procedure is quite likely to have an equally slow progress through both Houses of the Oireachtas, the pressures put on the Minister by the Garda and by some of his own backbenchers and members of his parliamentary party will be enormous. There is plenty of evidence that this Minister is well able to resist pressure but he is no more super-human than the rest of us and he may not be the final arbitrator of this. After all, it will be a Government decision ultimately and other members of the Government may not have the same commitment to civil liberties as this Minister may have and circumstances may well change. Therefore, it behoves the Minister to accept an amendment of this kind or introduce one himself on Report Stage to meet the understandable fears of a number of people.
That having been said, I would be less than honest if I did not elaborate and say I do not believe that any tribunal of the kind that normally operates in our society would actually listen properly to many in our society who have complaints about the Garda. If a member of the travelling community was to allege mishandling by the Garda I very much doubt if a liberal,  respectable, middle-class tribunal made up of the kind of people who usually are members of such bodies will really believe, where there is a conflict of evidence, the word of those who come from the bottom segment or the margins of society. I do not believe that a disaffected young person with a Mohican hair style coloured purple could really expect a balanced consideration of his or her complaint from a tribunal which is middle-aged, properly dressed and see the Garda as most members of the Oireachtas including myself do, by and large as the custodians of what is best in our society. There is more to the question of a complaints tribunal than meeting the standards that those of us here normally regard as acceptable. There is a large section of our society which is outside that particular consensus of what is and is not appropriate; what is and is not acceptable and what is and is not capable of being done. Such a tribunal, as I have said on many occasions in the past, will not meet the needs or the fears of many of these people. They may never get near it; they may never be able to approach it.
The suggestion that people can use the courts betrays an astonishing lack of perception of the people alienated from any of these processes. For a large section of our society, the court procedure is a conspiracy between the legal profession, the Garda and the Judiciary in which they are alien participants looking on from a distance and not really feeling that their perspective is understood. Therefore, irrespective of whether such a tribunal is set up, many people will not feel happy and their position will not be understood. Indeed, I do not think they will be believed in many cases. Nevertheless it is an improvement on the present situation. I can see no logical or rational reason other than perhaps a desire to keep those powers there just in case something comes up in the meantime so that we can be seen to respond. Otherwise the proposal for the provision of a review tribunal as a necessary condition for the introduction of these powers seems to be  eminently rational and sensible. I look forward to hearing the Minister's reply to these amendments.
Mr. Durcan: These amendments display an indication on the part of their mover to try to get the balance right. There is a feeling in this House, which came across on Second Stage, that the concern of the Members is to ensure that this legislation ultimately reflects the balance that Senators would like to see it achieving. We have, on the one hand, the increased powers for the Garda and we have, on the other hand, the rights of the citizen. We have, above all, the statement made by the Minister in the Dáil and elsewhere and his undertaking that the relevant sections of the Bill will not be brought into force until the complaints procedure is in operation. Furthermore, there is the second explanatory memorandum, if I may term it as such, which goes even further than that and states that the Government have decided, on the Minister's recommendation, that those provisions of the Bill giving increased powers to the Garda Síochána will not come into operation until a ministerial order to that effect is made. It will not be brought into force until a complaints procedure involving an assessment by an independent person or tribunal has been established.
The question is whether we accept the undertaking given by the Government. I unreservedly accept that undertaking. It may be that Ministers may change but it is not merely an undertaking by a Minister; it is an undertaking by the Government of the day. I do not know whether alternative Governments are prepared to give a similar undertaking in relation to this legislation.
The other point I would like to raise is the question of the nature of the complaints procedure which will be brought into existence. At the moment, there is a complaints procedure under the provisions of the Garda Síochána's disciplinary regulations. That procedure is extremely unsatisfactory. Complaints currently are investigated either by a superintendent or by a chief superintendent sitting with  two superintendents. It is a little bit like — to use a phrase that has been used in this House before — going to law with the devil and the court being in hell. That is the way the public look upon it. It is the way that gardaí who are faced with disciplinary action under that procedure feel also. I should like the Minister to give some indication of the kind of complaints procedure which is envisaged.
Professor Hillery: I have no difficulty in agreeing in principle with this Bill but as I underlined in my contribution on Second Stage, it is vital that the complaints procedure be published so that we can debate it. In the absence of the complaints procedure we are buying a pig in a poke. I fail to see the logic in pressing this House into passing the Bill without the complaints procedure. It is unreasonable. After all, the key sections of the Bill will not be put into operation until the procedure has been debated in the Houses of the Oireachtas and agreed. I put it to the Minister, therefore, that we should wait until the procedure is finalised. After all, the Minister has repeatedly said that it is almost ready. It is entirely reasonable and necessary for us to demand the publication of the procedure right now and to debate it. Furthermore, it is very important that the content of the procedure should be available to allay the genuinely held fears of those within the House, and particularly those outside this House, who have genuine misgivings about certain provisions in the Bill.
Minister for Justice (Mr. Noonan,: Limerick East): First of all, I would like to make one or two general comments arising from what Senator Robinson and Senator Higgins have just said. I accept that the age structure of our population is a contributory factor to crime in this country and that in that section of our community many of our young people are unemployed. The fact that this generation of young people have not the same level of parental control that previous generations had probably contributes as  well. What also contributes is that that section of our young people — and indeed many of our young people — have not the same adherence to traditional religious values. They have not the same sense of sin. They have not the same inhibition from their particular code of ethics deriving from religion to inhibit them from committing crime. I do not think there need be any argument about that. However, to state these things as the causes of crime does not mean that once we have stated them we can simply sit back and relax and say that now we know why all those young people are involved in criminal activity and so we do not need to anything about it. It is not the question of the analysis of the problem that is between us at all. It is the question of what to do when we have the problem analysed. What are we going to do about it? Simply because they are young, unemployed, out of parental control and lacking in traditional religious values, is that a reason for standing back and saying that it is all right? They can steal cars and drive them at speed through the streets, they can hurl paving stones at gardaí. Is that to be our position?
Mr. Noonan: (Limerick East): Senator Higgins says that unemployment and crime are very closely connected. Probably, but again not proven. In 1977, 1978 and 1979 when the crime statistics first began to rise dramatically, that was the time of the previous administrations's economic plan which, whatever else its merits, was reducing unemployment. Unemployment was down to about 80,000 and the crime statistics were going up. Different criminologists have different views for the causal factors of crime.
Mr. Noonan: (Limerick East): An analysis of crime such as the Senator has engaged in is not the only analysis available. What the Senator has stated as his opinion is his opinion and is very valuable for that reason, but is not proven fact.
On this set of amendments here — we are only taking Nos. 1 and 2 now, not No. 18 — initially, I am surprised that they were put down. I have given a commitment on behalf of the Government that certain sections of this Bill will not be made law by me under the terms of section 1 until a complaints procedure is operating. That was done willingly when the Bill was published. It is not just a personal commitment. It is a commitment given by me to every legislator in the Oireachtas on behalf of the Government. That certainly — I think Senator O'Leary asked the question — would be binding on any other Minister for Justice in this administration because it is a commitment given by the Government. A second part of the commitment, on the regulations governing the treatment of people in Garda custody, was introduced by me by means of amendment — I think it is section 7 now — after Second Stage in the other House. Again, because of the nature of the amendment it was an amendment that had to be agreed by the Government. It was not just an amendment of a technical nature. There again there was a Government commitment on that.
I would like also to make a further point and it is that there has been an attempt in the debate in general to present these two regulatory processes as if they were being forced by people outside and inside the House on a reluctant Minister. There is no question of that whatsoever. As a matter of fact, when the party who are now in Opposition were in power, they intended to bring in a Criminal Justice Bill. They certainly had much of the work done, a lot of the  research done. I doubt if it would have differed very greatly from the Criminal Justice Bill which I introduced. But there was no indication at any stage that they intended having it accompanied by a complaints procedure, independent or otherwise. Also, on the question of the regulations implementing, by and large, many of the recommendations of the Ó Briain report which was, as far as I remember, published in 1978, one of my predecessors, Deputy Gerard Collins, was Minister for Justice and received that report. That administration had a long run subsequently. They had plenty of opportunity for making statutory regulations for controlling the way gardaí behave and the way they treat people in custody. There was no problem about that if they wanted to do so. I am not saying this in any partisan way or trying to score points off the Opposition or anything like that. All I am saying is that this administration had proceeded on the complaints procedure. This administration are committed to bringing in statutory regulations to control the treatment of people in custody. We are prepared to do that. I have said in the other House on behalf of the Government that I am not going to bring in certain provisions of this Bill until the Dáil and Seanad have agreed the legislation which will be necessary to set up the complaints procedure. I have also said that I am not going to implement certain sections of this Bill until the Dáil and Seanad, by positive motion, have a chance to debate the statutory regulations about which I have been talking. I do not see that either House needs further guarantees than that. The commitments that I have given on behalf of the Government are binding on me. They are also binding on any other Minister for Justice that the present Taoiseach may appoint in this administration. On the question of subsequent administrations, perhaps Senator Robinson and Senator O'Leary know something more than I do, but I do not see a change of administration before the Dáil has debated the complaints procedure and, indeed, the Seanad has debated it  also and before statutory regulations controlling the treatment of people in custody have been before the two Houses and passed. But even if that kind of doomsday situation were to occur, we have had Deputy Michael Woods, Opposition spokesman on Justice in Dáil Éireann, actively supporting the idea of complaints procedure, proposing amendments wherein a a particular framework of complaints procedure was being advocated and Senator Eoin Ryan here today in a very fair way debating the same points, saying that this would be desirable, that many people would be uneasy about certain provisions of this Bill and that the thing that would tip the balance of their unease into support would be a complaints procedure and regulations. I do not think the Seanad need have any fear even if this Government were to fall and were succeeded by the Opposition. I do not see any alternatives at the moment unless Senator Brendan Ryan can get 84 behind him. I think that the commitment would be sustained, even by the Opposition if they were in power.
Mr. Noonan: (Limerick East): I will be concluding in a minute. I do not see the Seanad as a rubber stamp for everything Dáil Éireann produces and I am quite prepared to listen to the arguments here today. I have no inhibitions about going back to the Dáil if I have to with amendments from the Seanad.
If the amendment is not pressed, I will look at it between now and Report Stage. I take it Report Stage will be next week rather than this week and that there will be some time to look at it. I think the fears of the Senators are unnecessary. The only commitment I am giving is that I will look at it; I am not saying that I will introduce an amendment. I will examine it and give my views on Report Stage, if that is acceptable. Otherwise I am opposing it as of now.
Mrs. Robinson: There was a definite sweetener at the end of the Minister's  contribution. As mover of the first amendment, I appreciate his willingness to look at the amendment and to consider what are the two prongs that the provisions extending the powers of the Garda Síochána would not be introduced until there is legislation establishing the complaints procedure — and that can be worded in whatever way is deemed suitable if the principle is accepted — and, secondly and equally, that these sections, which would very substantially extend the powers of the Garda Síochána, would not be introduced until regulations have been adopted and are in force providing the safeguards envisaged in section 7. In view of the fact that the Minister is prepared to examine both the principle behind these amendments and the views expressed on Committee Stage, perhaps I could respond briefly to several of the points he made.
I do not really want to get into too lengthy a discussion on identification of the crime problem itself and the factors which have led to an increase in the incidence of crime on the ground. When I referred to this earlier this afternoon I was drawing particular attention to, and would still very much emphasise, the inevitability and predictability of a relatively high crime rate in Ireland over the coming years because of our age structure. This is obviously aggravated by a high level of unemployment, by inequity and by inequality in our society and by all kinds of other factors.
I may not have sufficiently emphasised the point that other societies have had to face this problem too and have been very concerned not to erode a basic core of values which is an extremely important part of the way in which society addresses itself to combating the incidence of crime. The Minister took some of the points at a rather superficial level in posing the question: do we not want to deal with the problem? Nobody I heard contributing, either at Second Stage or this afternoon, in any way sought to either run away from or underestimate the need to very seriously address this problem. The fundamental issue is how we do it. Once again, I join with Senator  M. Higgins, Senator B. Ryan and others who have contributed by saying that, perhaps what the Minister was really doing in the first part of his contribution to this amendment was making the case why there should have been a White Paper. Then we would have had a much better framework of reference for all of us to refer to, and draw upon and to strike the balance.
If I could refer to the Minister's emphasis on the extent to which an undertaking has been given. In moving this amendment I referred to the explanatory memorandum and to the wording of amendment No. 1. Insofar as it refers to a complaints procedure it is taken verbatim from the commitment given in the explanatory memorandum because that is the most formal wording we have of that particular undertaking. I accept that it is not just an undertaking given by a Minister in moving a Bill either on the record of this House or the other House, it is one which is accompanied in an unusual form as an Explanatory Memorandum to the Bill. But I still maintain that it is only a decision of the Government. Under the exigencies of a particular situation, either of failure to get agreement on the form of complaints procedure or certain incidents which give rise to concern and pressures, perhaps from the Garda themselves or from sectors of the community, Government may be asked why, when the Bill has been passed several months, it is not being implemented, why are the Garda Síochána not being given this power?
A local by-election in a sensitive area could lead to a change of decision by the Government. A Government which changed their minds and took a different decision would certainly face the political reality of being criticised for changing their minds but I am sure they would be able to marshall the facts and circumstances which justified a change of decision. There is no legally binding nature to it. One could not go into court and get an injunction. One could not say that the Bill was not valid because an undertaking had been given and there had been a  change of mind. This is all in the political arena. Many things happen in the political arena, even under the responsibility of an existing Government and Minister but on neither side of the House is there any question of not accepting the bona fides of this particular Minister; that is simply not an issue.
We have had experience of fairly rapid changes of Government. I share the Minister's quiet optimism that the present Government will have the time and capacity not only to address the problems and the safeguards that will have to accompany this legislation, but other issues relating to our economic and social life. That is only my view, the Minister's view and the view of many other individuals in this House. None of us has a crystal ball; none of us know what will happen. Our job as legislators is to deal with objective realities and to ensure that we incorporate into legislation the minimum safeguards. I take the phrase used by Senator Ryan in this — these are the minimum safeguards in the Bill which make the Bill minimally acceptable to a wide range of people, to Members on both sides fo the House and to a broad section of the community, which is very understandably and justifiably concerned about the far-reaching powers that are being conferred on the Garda and which, by their nature, must be susceptible to being abused. We have our history, and the history of every other country where one can see an examination of police powers to justify this concern.
There are strong and cogent reasons why the amendment should be incorporated in the Bill. The final reason I would like to re-emphasise and refer to has been mentioned by a number of contributors to this debate — Senator Ryan in passing, and later emphasised by Senator O'Leary — that is, the pressure on the Minister. The situation could well be one where, either in relation to the detail of the complaints machinery or the detail of the regulation under section 7, there were delays because of failure to get agreement with the representatives of the Garda Síochána or with other interest groups or perhaps, alternatively, the  Minister came forward with what was not considered to be acceptable to a sufficient number of Members of the other House or this House to require a very slow and tortuous debate on the Bill establishing the complaints machinery, or perhaps, a very cold welcome to the draft regulations. All this would build up pressure on the Minister to introduce sections of the legislation giving these extended powers to the Garda Síochána. This is looking at it from one point of view. It is a way in which the Minister can ensure that the balance is achieved by being able to say: “It is part of the legislation and therefore, I am totally bound by it; it is not just my undertaking. There is nothing I can do about it. I cannot bring these provisions which give additional powers to the Garda Síochána into effect until there has been agreement on the shape and form and on the Bill establishing the complaints procedure, until I have had the positive resolution of both Houses affirming the draft regulations.” I believe that that is equipment in his arsenal that the Minister should not under-estimate and he should be prepared to take it on board by way of either accepting such an amendment in the form in which it stands or alternatively drafting a Government amendment to achieve the same purpose.
If the Minister is unequivocal in his own commitment to the position, then what is so wrong about about putting it into the Bill? Without doubting his bona fides in the matter, if the Minister agrees and accepts that the undertaking by a Minister is not a legally binding requirement and that this is a very sensitive Bill in which we must be sure that we have all the legal security we require, I cannot see that it is any major concession on any issue of policy to accept the principle of the amendment and to introduce the safeguards which it seeks to incorporate in the Bill.
Mr. E. Ryan: I agree fully with what Senator Robinson has said. There are two points of view on this. There are those who want the powers and are not unduly concerned about the precautions and there are those who say, very reluctantly,  that perhaps the powers are necessary but the precautions are absolutely essential. The only fair way the Minister can deal with both points of view is to have both aspects in the Bill, to say in the Bill that the powers will not be given until the precautions have been properly drawn up and are acceptable to both Houses.
I am mystified by the fact that the Minister is reluctant to do what he is asked to do in these amendments and as to why he will not introduce into this Bill a section which will ensure that the powers are not given until the commission is set up, in view of the fact that he agrees that the complaints commission must be set up and that he sees no objection to it and has given a commitment that it will be set up. In the circumstances, why is he so reluctant to have this provision in the Bill? Because of his miniterial background, legal background and so on, the Minister must know that the proper way to introduce a Bill of this kind is to have everything essential in the Act when it goes through. It is thoroughly unsatisfactory to have an Act in which some things are in and some things are merely ministerial undertakings or some reference to regulations in the future. It is just not the right way to do it. The proper way, the only satisfactory way to obviate any possibility that the undertaking cannot be implemented in the future or that pressures will build up which will minimise what is going to be done, the only safe and proper way to do it is to have it written into the Bill. I am mystified as to why the Minister is reluctant to do something which he is committed to doing. The Minister has said that he will look at the matter between now and Report Stage.
An Leas-Chathaoirleach: Excuse me, Senator Ryan, but I will interrupt you for a moment and ask you to resume your seat. I understand that the Honourable Douglas McClelland, President of the Australian Senate, has joined us in the Visitors' Gallery. On behalf of the  House, Senator McClelland, I welcome you warmly.
The Minister said that he would look at the matter between now and Report Stage. I must say that his undertaking or promise in this respect is far less convincing than the undertaking he has given to introduce a complaints commission at a subsequent stage. He says he will look at the matter again. He has had an opportunity to look at this. A similar amendment was brought in in the other House and at that stage he said he was really not in a position to deal with it. He has had almost three months now to look at that amendment and the possibility of having this provision written into the Bill, and if he is not in a position today to agree it seems most unlikely that he is going to change his mind between now and Report Stage. Therefore, although I appreciate the fact that the Minister has undertaken to look at it again, I am afraid it is not a satisfactory way of dealing with this and I would not be prepared to wait until Report Stage. I must ask the Minister to accept this amendment and I will have to put it to a vote if he is not willing to do so.
Mr. Harte: I am sorry that I missed the Minister's reply to the debate so far. As one who came out strongly in favour of the Bill, I support Senator Ryan in saying that this amendment is a necessary corollary. We need not be in conflict with one another in our views on this Bill, but it is necessary, once we are not in conflict, to understand that we see difficulties in certain aspects of the Bill. The sensible thing for the Minister to do would be to take a serious look at this and bring in an amendment of his own on Report Stage and give a commitment to that effect.
Mrs. McGuinness: I would like to join in supporting these two amendments. As has been stated by previous speakers,  I do not think that the wording of the amendments is of so much importance as the principle that is involved. Of course, to some extent I am pleased that the Minister has said he will look at the matter again between now and Report Stage. Contrary to my attitude to the Minister last week, today I would like to express appreciation of the fact that throughout the passage of this Bill through the Dáil and throughout the public and private negotiations and the pressures on the Minister about the framing of this Bill, he has shown himself steadily to be sufficiently open-minded to accept a good point when it is made to him and to alter the Bill if he is convinced that it is right to alter it. Therefore, it is with some hope that I support the bringing in of this independent complaints procedure as an essential part of the Bill in the way in which it is suggested in these amendments. This is a matter of basic principles. Law will be respected if it is seen to be just. Procedures will be respected if they are seen to be fair, and if we bring in a procedure under section 4 and the following sections which appear to give excessive powers of detention and so on and we do not give any balancing procedure which will allow for complaints to be made and to be investigated impartially, if abuses arise, we will be seen to be introducing a system which is not procedurally fair and which is not in the final analysis a just system. Therefore I think it will be a system which will fall into disrespect. This is connected with what some of us were saying during the Second Stage debate about the relationship between the public and the Garda. While I accept what Senator O'Leary says about the probable length of the negotiations with the Garda, I cannot help feeling that the Garda must gain by the introduction of a body such as this which at any rate will protect them from ill-based accusations and encourage them to act in a proper fashion. It will certainly discourage some of the small minority of the members of the Garda who might be tempted to act in an improper fashion. The introduction of a body like this can only be a great advantage to the Garda  Síochána as a whole as well as to the public.
I would also like to support what was said by Senators Robinson and Higgins about the background to the Bill, the need for more information, more research rather than simply a sort of response to what is seen as the crisis. To bring in legislation that seems to be merely a response to a crisis is almost always ill thought out. It would be better to have the type of White Paper that Senator Higgins was asking for which would show us on what actual facts the response was being based and what thought had gone into the framing of the legislation. What Senator Robinson has said about the age profile of the population and the incidence of crime is a very important point. It has been borne out by statistical investigation here as well. When I was a member of the National Economic and Social Council, on the social policy committee, there was considerable work done on this and it certainly appears that while the total number of people apprehended for criminal activity varies to some extent throughout the population, it only varies among those under 30. The kind of criminal, and the kind of crime that one finds in the over 30 age group is a totally different problem. Very often these are the real recidivists, the people who have taken up a profession of crime as it were. The younger people to some extent tend to grow out of this type of behaviour although that is a rather simplistic way of putting it. Certainly, if one takes the age distribution of the national population and the age distribution of persons apprehended for indictable offences, say in the year 1979, we would find that the 15 to 16 year age group, for instance, is over-represented by a factor of nearly five. That is nearly five times as many people in the 15 to 16 year-old age group are apprehended for indictable offences than one would have expected given the number of 15 to 16 year-olds in the population. This applied right through the 15 to 16 year-old age group. In the 17 to 20 year-old age group there is also a considerable disproportion, a slightly  less disproportion in the 21 to 29 year-olds and then when one gets to the 30 year-olds it begins to fall and one finds that there are fewer people in proportion to the population than one would have expected.
Undoubtedly, it is not just a question of this happening in America or in other countries; it happens here. Among young people in particular there is a feeling that the criminal procedures we go in for, and the system we go in for, must be a fair and just one if they are to co-operate with it at all. This I mean in the case of young people who are not involved in crime. They have a very clear view of the legal system, that it should not just be a system of law but also a system of justice. The introduction of amendments on the lines of these two are very important from the point of view of the whole justice of the system, the way in which it is perceived and the kind of co-operation we will get from these age groups who are the ones most involved in transient crime, if I might put it that way.
Mrs. Robinson: I feel it necessary to come back on this amendment and, indeed, to press the Minister further in regard to it. It is quite clear from the contributions on both sides of the House, from the two parties that form the Government and from the Fianna Fáil benches and from the Independents, that there is a shared view that it would add to the safeguards in the Bill to have the particular protections referred to in these amendments incorporated in the text of the Bill. We are not here talking about a completely different approach on matters of principle or policy. It is clear from the Minister's undertakings given at the time of the publication of this Bill in so far as the complaints machinery is concerned that, as he said, he took an initiative in introducing the amendment to give him power to make the regulations and he has given ministerial assurances that the sections we are talking about will not be implemented until these regulations have been passed. He must take on board that that is not regarded as being an adequate legal protection as far as the Members of  this House are concerned but, at the same time, that there is no imputation on his bona fides, no attempt to suggest that as far as he or, indeed, the Government are concerned in their present decision and frame of mind it would not be intended that the safeguards would be there before the Bill came into effect. However, we must legislate for an indefinite future. We must ensure that the legislation is satisfactory in its own terms regardless of who is in office or who is in Government.
I am now in a situation of some difficulty. I actually took a slightly different view of the Minister's intervention in this debate. I thought his approach was more positive than Senator Ryan appears to have concluded. I am prepared not to have this amendment pressed and put to a vote if the Minister is genuinely going to undertake to have a look at it and is genuinely considering putting forward an amendment on Report Stage. I would certainly intend to retable this amendment on Report Stage and to see whether in the meantime the Minister had either indicated that he would accept the amendment as it stands or that he would come in with a Government amendment to cover the points. I would ask for further clarification from the Minister of his position on this and I would ask him to respond to what I think is an unusually shared view on all sides of this House, and an unusually shared concern, that we should have in the Bill safeguards which we believe are a minimum requirement before this Bill is acceptable.
Mr. Noonan: (Limerick East): I should like to say that the Garda when consulted said they have no reluctance in accepting a complaints procedure. As a matter of fact they have stated it on several occasions. The particular formulation of the complaints procedure that has been discussed with them in various consultations that have taken place has been accepted in principle. I hope that the consultations will be finalised very shortly. I expect to have a draft Bill in the next couple of weeks and that the consultations with the Garda will be  finalised. I do not see any great problem there. I hope that they will able to accept in principle and in detail also the draft regulations which are being drawn up. We have not discussed that with them in any detail yet. I do not foresee any problems there either.
I am glad the point has been made that this is not casting any reflections on the bona fides of the Government. I am not particularly concerned about anyone casting aspersions on my bona fides. I do not think that is intended at all. I do not think from what I have heard that there is any question of anybody questioning the bona fides of the Government on this and there seems to be general consensus here. What I am saying is that between now and Report Stage I will genuinely look at this with a view to introducing a Government amendment. If it transpires that I am not in a position to do so for any reason I will tell that to the sponsoring Senators of this amendment so that they can put down their own amendment if they want to press it again on Report Stage.
Mr. B. Ryan: I am quite happy to go along with Senator Robinson. I would not expect any more from the Minister at this stage. I regard my own election to the Seanad as sufficient a miracle without looking for 84 more people like myself. I am quite happy to accept what the Minister has said.
Mr. Robb: It is essential that the Minister leaves this House absolutely clear in his mind how strongly a very broad spectrum of Senators feel about this issue. In my short contribution on Second Stage I said, and I hope I will not be misquoted, that I could find myself supporting a great deal of the Bill if it had been in the context of more concern about the changing state of the citizen in the community, of a more extensive and more widely embracing look at what we mean by community policing, if the country as a whole did not have a crisis of direction and if we urgently considered the whole business  of prisons. By prison reform I mean looking at 19th century institutions and preparing them for the 21st century.
We are not looking at this Bill in that overall context. There has been some effort made in each of these directions but there certainly has not been a sufficiently aggressive attempt made to look at the whole pattern of society which is creating the crime which Senator Higgins and Senator Robinson have mentioned. Therefore, in this context we must have the reassurances which both these amendments, the one proposed by members of the Labour Party and Senator Eoin Ryan's amendment, have implied as being necessary. I will be very disappointed, as an Independent, if I find on Report Stage that the suggestions that have been made here and the amendments that have been proposed have not been incorporated into the legislation. I am sure Senators will take steps at that Stage to make their feelings known on the matter.
I have no doubt that the Minister will give this a lot of consideration. I hope that when he does he will remember the terrible mess that we got into in Northern Ireland for so long because there was not a sufficiently independent body to scrutinise any irregularities in relation to the application of law and order particularly in a society in which there is a feeling that justice and equal opportunity do not abound.
Mrs. McGuinness: I join with Senator Robinson and Senator Ryan in welcoming the Minister's commitment to reassess this matter between now and Report Stage. Therefore, I am prepared to wait for Report Stage to see what amendments he brings forward. I agree that we are not questioning either his bona fides or the Government's bona fides but the point of including this commitment in the Bill is an important one and I would be very eager to see this done. I am prepared to await an amendment on Report Stage but the Minister can be quite sure that we will be referring to it again on Report Stage in any case.
Mrs. Robinson: Subsection (2) of section 1 refers to the fact that sections 12 and 14 do not apply in relation to offences committed before the commencement of the section concerned. I want an assurance from the Minister, it is merely for clarification, that he is satisfied that it is not necessary to have a similar provision related to other sections of the Bill. There are other sections such as section 17, for example, and others that increase penalties under existing law. I wonder if he will tell us why sections 12 and 14 have been singled out. Is he satisfied that it is not necessary to have a similar provision in relation to other sections of the Bill? NEW SECTION.
“2.—(1) Each of the following sections, namely, sections 4 to 6, 8 to 10, 15, 16, 18 and 19 shall remain in force only until the expiry of the period of twelve months beginning with the commencement of that section, unless it is continued in force by an order under this section.
(2) Subject to subsection (3) of this section the Minister may by order provide at any time when any of the sections referred to in subsection (1) is in force that that section shall continue in force for a period not exceeding twelve months from the commencement of the order.”
Amendment No. 3 is another amendment intended to provide an adequate and satisfactory safeguard and monitoring by the Oireachtas of the way in which this Bill, when it becomes law, will be put into operation, the actual effect it will have and the precise problems that may or may not emerge on the ground when the powers are being exercised by the Garda Síochána. The amendment proposes that instead of having the safeguard which the Minister introduced as an amendment in the other House that the particular sections in question, which are the sections which provide for a substantial increase in the powers of the Garda Síochána, would be in operation for a period of four years and then cease to be in operation at the end of that period unless there had been a positive resolution by each House of the Oireachtas resolving that the sections would continue to be in operation.
That is certainly some check on the operation of the sections in question but I would submit that it is a very limited one. It can only happen once. After a  period of four years once you had a positive resolution there would not then be any further period. It does not say every four years; it says after a period of four years there would be a once-off opportunity and indeed a requirement that there would be a resolution continuing the sections in force or otherwise they would expire.
The purpose of this amendment is to introduce what is a much more genuine and ongoing parliamentary scrutiny of the Bill. What is envisaged in this amendment is that the particular sections, and they could be brought into force individually as the Bill envisages, or they could be brought into force collectively as a group of sections, would remain in force only until the expiry of a period of 12 months beginning from commencement of the particular section or a group of sections unless they were continued in force by an order under the section. Then the Minister could by order provide that the section continue in force for a period not exceeding 12 months from the commencement of the order. You would have an opportunity within the first 12 months and indeed the requirement that the Oireachtas resolve that the particular sections continue in force and every 12 months while the sections were being continued in force there would be that requirement.
Apart from that placing a certain onus on whoever is Minister for Justice for the time being to ensure that a resolution to that effect was laid before both Houses, and to ensure that this was done in time to enable both Houses to pass the necessary resolution, it would also be a very effective means by which the Oireachtas could examine and scrutinise the way in which the Act was being implemented on the ground. Because there would be that requirement of annual scrutiny by the Oireachtas, it would be a very effective way of generating the data on which to base that scrutiny. It would require that there be made available to Members of both Houses the kind of research, the kind of statistics and the kind of knowledge on the ground on how the particular  provisions were being implemented.
For example, before there would be renewal by both Houses, there would have to be a report available to the Members of both Houses on the numbers of persons who had been arrested and detained for questioning under section 4, the number of those who were subsequently charged, the number under a certain age, the way in which the provisions for consulting solicitors or notifying parents of younger people were operating, the way in which the regulations under section 7 were actually operating on the ground. This would change the whole nature of the parliamentary scrutiny into a much more effective monitoring of the terms of the Bill That kind of parliamentary scrutiny is required and, indeed, justified by the broad concern expressed on all sides of the other House and on all sides of this House on Second Stage about the provisions of this Bill. It is a minimum safeguard to the decision to enact and the approval of the enactment of the provisions of this Bill.
The amendment introduced by the Minister which provides for the matter coming before both Houses in four years after the implementation of the sections in question on a once-off basis is not the same kind of check and control. First of all, it is a very considerable period of years after the bringing into operation of the sections collectively. It can be done in relation to each individual section. This is a very long time. All kinds of things could have happened. Things might be the subject of individual Parliamentary Questions or perhaps motions on the Adjournment from time to time, but there would not be a considered opportunity for a debate and the proper parliamentary scrutiny of the operation of this Bill when it came into effect.
Nor would a once-off review, which would only happen a full four years after these sections are brought into operation, generate the kind of information, accountability, and statistical and other data which would be one of the important consequences of the acceptance of this amendment. If the requirement was just  for a once-off review after four years, then what happened in the first three years could be quietly forgotten and perhaps there could be a honeymoon period leading up to the time when the matter was to come before the Oireachtas for the necessary positive resolution at present provided for in section 2.
The amendment reflects the close concern of Members of the Oireachtas, on all sides of both Houses and the constant reference that has been made by individual contributors to the debate to the lack of proper and adequate data, proper and adequate research, proper and adequate monitoring of existing powers, and the obvious power in question is the use that has been made of section 30 of the Offences Against the State Act. This is causing considerable concern. It is clear from the statistics provided by the Minister that the net is cast very widely indeed in arresting persons under section 30 of the Offences Against the State Act, and that approximately 90 per cent of those arrested in recent years were not subsequently charged. The Houses of the Oireachtas would be entitled to be extremely concerned if this more general power were to be used in that way, and if approximately 90 per cent of persons arrested under section 4 were not subsequently charged with any offence following the arrest and detention for questioning. I submit that the Houses of the Oireachtas would want to know that at the end of a calendar year, and not four years later in the opportunity at present provided for a review of the powers.
I should like to refer briefly to amendment No. 4 proposed by Senator Ryan. He proposes substituting one year for the four years which the Minister had moved in his amendment in the other House. The difficulty in the limitation of that proposal is that, after that one year, there is no provision for a subsequent review, whereas the amendment put down by Senator Higgins and myself is intended to provide — there may be room for improvement in the wording if the principle was accepted by the House — for an annual requirement of a positive resolution  by the two Houses in order for the particular sections to continue in operation for a further 12 months.
This seems to me to be an important way in which there can be very close and detailed monitoring and, therefore, accountability for the actual operation of these provisions, and the opportunity for individual Members of either House to refer to their own experience, or to representations made to them, and to have issues clarified and to satisfy themselves that the Act is operating on the ground with adequate safeguards and protections. If we are giving these unprecedented powers, we should also take the necessary steps to ensure that we have an annual opportunity to monitor the sections which give us most concern.
Mr. M. Higgins: The only points I want to make that are in addition to or in any sense amplify the arguments made by Senator Robinson in support of this amendment are that the arguments adduced by those who seek efficacy in this Bill are to accept the concept of there being a crime crisis. If pursued logically to its conclusion, one must assume that effective action will, in fact, change the nature of the crime problem and will have some impact on the crime statistics. If we are to take that benign view of the operation of the legislation, it is not unreasonable to require that it should be able to monitor its own progress. If you take another view, that is, that the operation of the Act, in the absence of a precise direction towards reducing the detection rate, may create the insecurities I mentioned already in relation to the first amendment.
Mrs. Robinson: There is a subsection left out in the printed copy of the amendment. It was corrected in the provisional  amendment. The provisional list of amendments which was circulated had a subsection (3) which provided that every order proposed to be made by the Minister, which of course was implicit in what I was saying——
Every order proposed to be made by the Minister under this section shall be laid in draft before each House of the Oireachtas and shall not come into effect unless a resolution has been passed by each House of the Oireachtas resolving that that section should continue in operation for a further period not exceeding twelve months.
Mr. M. Higgins: Thank you for the positive interruption of what I was saying. I mentioned the point that, looked at one way, it was reasonable to be able to review the progress of the Bill if that was your view of the Bill's effect on the crime rate. On the other hand, if you saw the Bill as creating fear or apprehension in  some way the case is even stronger for having an opportunity to review the Bill within a period of five years.
I welcome the concept of a review. When I was a Member of this House between 1973 and 1977 we discussed other legislation dealing with criminal activity and the case was often made that legislation was introduced dealing with what was then suggested were emergency conditions and special circumstances but it was not clear then that there was a great commitment to reviewing it when it would no longer be absolutely necessary.
Two things bother me. One is that in the introduction to this debate in July, the point was made by the Minister that people were used to being detained, going to Garda stations and staying there for a while. As we all know, a number of very important judgments were made which expressed a clear opinion as to the legality of detention for purposes other than the presentation of a person in court for specific crimes. This appeared to set in motion two quite different views. The first was the view of the Garda, expressed in their own journal with commentaries on it, that they now had their hands tied behind their backs by these judgments. Their procedures, which were informal and not sustainable in law, had been interfered with by these judgments. In any legislation of this kind, the proposer would have to go after resolving that tension between those whose judgments are based on guarantees which have a long history in the legal system, even a tortuous one at times, and the enforcers of the law. Relief of that tension can be assisted by having a period considerably shorter than five years. The interpretation not only of procedures like that but of the Offences Against the State Act can change from year to year. In December 1983 the Minister in answering a question to a Deputy gave figures of those detained between the period 1972 and 1982 under section 30 of the Offences Against the State Act. These were 1972, 299; 1973, 271; 1974, 602; 1975, 607; 1976, 1,015; 1977, 1,144; 1978, 912; 1979, 1,431; 1980, 1,874; 1981, 2,303 and 1982, 2,308. A Senator has pointed out that the proportion of those detained under that section  of the Act is small. Out of the 2,308 detained in 1982, 256 were actually charged. I know that it is not the purpose in speaking in favour of this amendment to make a case for reviewing the operation of section 30 of the Offences Against the State Act but I would like to see the operation of that section submitted to some review.
Mr. M. Higgins: What you can see, if you look at the historic operation of that section of that Act from 1972 to 1982, is that its operation has increased tenfold without a review. There is a very strong case indeed for a review to accomplish the very purpose that the people who are in favour of this legislation suggested on Second Stage and that is that if you believe that it will have an effect on the crime rate and that it will be useful, then why not monitor it as quickly as possible? If you are apprehensive about the operation of sections as I confess myself to be, not for people like myself but for those whom I believe the scrutiny of the State is directed at more frequently, then there is a strong case for accepting our amenment.
The case has been made in the Dáil, in discussing an amendment of a similar kind, that a period of a year was too short and that one should let it run for five years. The Bill is so innovative in changing the balance of the relationship between the individual and the enforcement authority, between the community and the enforcement authority as such, that right from the start you would want to have the possibility of monitoring and scrutinising the operation of the Bill. It is by way of illustration that I give our experience of section 30 of the Offences Against the State Act. That argues very powerfully in favour of there being a period of review and continuous review, as Senator Robinson has pointed out, rather than a once-off reflection on the Bill after a period of years. Also, in view not alone of the apprehensions of those affected but the apprehensions of those who worry about the impact of this as an instrument of legislation, it should be  reviewed after a period of 12 months. We will be thanked for it by many of the people within the stations who might want to see it being put into effect because it is as clear an indication as can possibly be that there would be no vague interpretation of the Bill and that one would be required to follow certain procedures very thoroughly, knowing that there would be a period of scrutiny, a report and monitoring. Equally, who knows, perhaps after the end of a generation it might be a step towards a White Paper. It might encourage the gathering of statistics on the operation of the law in this regard. We were in the curious situation where the official position of the Department of Justice was that it did not initiate research on the operation of the Offences Against the State Act but the Minister was able to give very valuable information on its operation over an 11-year period at the end of December. It was information for which criminologists were very grateful.
Mr. B. Ryan: People like me are a little like fools rushing in where angels fear to tread in attempting to draft amendments for a Bill like this when there are people with the capacity and capability of Senator Robinson. I would be quite happy to support Senator Robinson's and Senator Higgins's amendment and in so doing express my wish to withdraw my own amendment which is far better covered by what Senator Robinson and Senator Higgins have said. I wish to speak on Senator Robinson's and Senator Higgins's amendment rather than on my own, if the House will approve and give me permission to withdraw my own.
A distinct lack of a common comprehension or perspective on how many people view this piece of legislation is obvious from listening to the Minister, from reading his statements and from listening to the arguments. I would accept that the large body of opinion in Irish society, if they were asked, would say they are in favour of the Criminal Justice Bill. They might not know what is in it, but they would still say quite happily that they are in favour of it because the Garda  have done what is acceptable through their own professional association, a good job of giving people the impression at least that it will do some good. Also, regrettably, certain gardaí, speaking as members of the Garda Síochána, have well exceeded their brief on a few occasions in their advocacy of this legislation, and in some of their implicit and explicit criticisms of politicians who, in their words, have delayed the passage of this Bill.
On the question of a White Paper that has come up a few times, as Senator McGuinness mentioned and many people know, the National Economic and Social Council are doing a major study on crimnal justice policy. That study has been circulated within that body for a long period. The Minister, as a member of the Government, could perhaps in the meantime, between now and Report Stage, find out for us what is the precise status of that study. Is it near completion? What is holding it up? Why has it not been published? Does it contain any useful information? The NESC as an authorative body might be capable of producing something which, while not having the status of a White Paper, would at least advance the debate substantially on all these questions that we have been discussing. Therefore, perhaps the Minister could inquire for us, in a way that none of us would be able to do, what precisely is happening within the NESC on this matter because NESC reports, after all, have to come to the Government before publication. For all I know, the report is before the Government awaiting publication. If it is, it would be extremely regrettable if the publication were delayed until after the Criminal Justice Bill went through. It would seem to be a great pity if that were the case.
On this question of the annual review, I regret and fear that there will be a fundamental disagreement here because the Minister not only has insisted that this is not just a response to the present crime problem but a necessary re-definition of the powers of the Garda for the future, which has been interpreted by many people as a partial Government response that leads to the prospect of  long-term mass unemployment. But the Minister indicated in his Second Stage speech in the Dáil that the Bill was a response to the anticipated needs of the future. His comments have been so interpreted and not just by me, I hasten to add. I see the Minister's sceptical smile. Nevertheless, he said something to that effect in the Dáil. He went on to say that the Offences Against the State Act was not just emergency legislation but was a part of the normal law of the land. Technically speaking that may be correct. Large sections of it depend on Government decisions in the light of existing circumstances before they are implemented.
There has been enough talk at this stage about the extraordinarily low rate of success in terms of the interrogations that take place under the Offences Against the State Act. That concerns the 90 per cent of people who were questioned and never charged. There is also the fact that under section 29 a somewhat similar number of warrants, about 3,000, are issued every year for searches of which about 90 per cent produce no further charges. The troublesome problem there, without anticipating discussion on section 4, is that the wording on which people are given the authority to search and to detain is very similar to the wording in this Bill — there must be reasonable suspicion. Having observed or heard of gardaí walking off, as I said before, with the membership list of the Cork Food Co-Op and the membership list of the Quay Co-Op as documents which they reasonably suspected to be connected with the commission of an offence under the Offences Against the State Act, I am extremely unhappy about any kind of legislation like that which is not subject to detailed, continuous parliamentary review.
Therefore, whatever the practical difficulties for the Department of Justice in terms of the compilation of information and whatever the difficulties in terms of parliamentary time — and I must say that I have not found this House so overloaded with work as to be unable to deal with an annual review of serious legislation like this — I think there is an  unanswerable case, when we are producing something as extraordinarily new as this which has produced such an unusually wide range of reservations from so many diverse groups ranging, if I may say so, from the Roman Catholic Church to Senator Higgins, to cover the two extremes of the political spectrum.
Mr. B. Ryan: I am sorry, I have been reading too much of Hot Press recently. I withdraw that remark. Senator Higgins and I will be contesting for the votes of a substantial proportion of the established Catholic Church at a future date, so I had better not be putting that sort of comment on the record.
Mr. B. Ryan: There has been an extraordinarly wide-ranging series of reservations. It would be a major concession and a major response to that wide-ranging concern to have a continuous review of this legislation. Obviously, it would not be impossible for some Government in the future, if they so wished, or this Government at some stage in the future, to amend the Bill when it is enacted to do away with this if they felt that it was no longer necessary. Indeed, I would hope to do away with these sections which I think are unnecessary.
We have already seen the future in many ways through the operations of the Offences Against the State Act. I am becoming a little fed up with people on picket duty being threatened with the Offences Against the State Act; people who misbehave at the Fine Gael Ard-Fheis being arrested under the Offences Against the State Act so that they will not make a nuisance of themselves; people who raised their voices in the wrong place during President Reagan's visit being arrested under the Offences Against the State Act; people misbehaving outside the American Embassy being arrested under the Offences Against the State Act. Indeed, people on one  occasion were arrested under the Offences Against the State Act, gave their presence in my company as their alibi and were then questioned in detail about my political views, not their own. I am becoming a bit fed up with all of that. It does not make me in the least bit happy about any extra powers. I know that many of us are in a minority in the Oireachtas about this. In order to maintain a proper balance between the Garda Síochána's own perception of their own needs and the reservations of many groups outside the House and a substantial group of people within the House, it would be very useful and very effective and also a good indication that Parliament is the supreme authority in this country to enable an annual review of the controversial sections of this Bill to take place.
Mr. O'Leary: I think Senator Ryan is wise to withdraw the amendment because it has considerable difficulties attached to it. I find myself in considerable difficulty. I find myself in sympathy with what Senator Robinson and Senator Higgins are trying to achieve — that is the review by the Oireachtas on a periodic basis. But I think that the prospect of a review — not so much an annual review, but a review after one year — is totally unrealistic. There are sections of this Bill to which I am totally opposed — section 4, in particular. I agree with everything that Senators Robinson, Higgins and Brendan Ryan said about the necessity for a continuous review of the operation of the various sections. But from a practical point of view to suggest that that review should commence after one year is only to play into the hands of those who want to have this eventually accepted as a permanent feature of our legislation. Those Senators who are familiar with the way in which offences are prosecuted will realise that it is very easy indeed for either the prosecution or the defence to delay the decision in a trial beyond 12 months. It is the simplest thing imaginable. One of the continual frustrations of prosecutors is the way in which courts constantly  allow adjournments on very flimsy excuses by defendants.
That is practically what happens on the ground. Somebody is sick; there is no medical certificate or there is an inadequate medical certificate but an adjournment is given. Similarly, even though it does not happen as frequently, the prosecution can get adjournments merely by requesting them. What would happen in the case of the review of the operation of, for example, section 4 of this Bill? If section 4 comes into operation, and I sincerely hope it will not, what is likely to happen is that a period will elapse and in due course allegations will be made during proceedings — very few allegations will be made in respect of which proceedings are taken — that people, the subject of proceedings, were ill-treated. If there is any element of guilt in that regard, a guilt associated with the prosecution, it would be simplicity itself for the prosecutor to arrange the delay of the hearing of that case beyond 12 months. At the end of the first 12 months, you would be faced with a situation where there was no single complaint which had properly been investigated, and which could be put before the House as a reason for the re-examination of the section.
The same thing, I would venture to suggest, would apply at the end of year two. I suspect what would happen is that these annual reviews would become very routine. Nobody would have any serious adverse comment to make about what has happened under the various sections of the Bill after a 12 months period. For example, going from my own instinct, I felt that in the case of offences dealt with on indictment — that means in the Circuit and higher courts — the delay would be very great indeed, knowing that the delay in Cork is two or three years. If a person is put before the courts in the Cork area he will not come up for trial before a jury for at least two to three years.
I looked at the report of crime for 1983. I suspect that the Commissioner is going to be sorry at the end of this debate that he ever produced that report because it gives us wonderful information. But one  other thing it shows us is that in respect of indictable crimes, and in respect of crimes dealt with before a jury or are going to be dealt with before a jury, more than one-third of the crimes committed during the year and in respect of which proceedings were commenced during the year, still remain to be dealt with at the end of the year. There is no difficulty in any such case in delaying a crime beyond the 12-month period for the review. The most important review in respect of this Bill is going to be the first review. Whether that review is after one year, two years, three years or four years, it is going to set the tone for the remainder of the reviews. The enthusiasm which the Members of the Houses of the Oireachtas will have for the review will wane as time goes on, just as the enthusiasm of the members of the press for the reporting of the debate on the Criminal Justice Bill has wanted now that it has passed from the Dáil to the Seanad. You will get a good press and the matter will be a subject of discussion the first time it is discussed, but after that it will become, particularly if it is too frequent, a non-event.
I then turned to the indictable offences which were dealt with summarily. I felt instinctively that they would be dealt with more quickly, but, funnily enough, in respect of the indictable offences — the serious offences dealt with in the District Court by agreement between the prosecutor and the defender and the district justice — much more than 50 per cent remained to be dealt with at the end of 12 months — 15,344 remained to be dealt with at the end of the 12 months as compared with approximately 14,000 that had been dealt with. There is no difficulty in delaying for one year or two years any case which would create an adverse reaction within the Houses of the Oireachtas or cast any reflection on the official side in the examination of the various sections.
I agree completely with the attitude adopted both by the Minister and by the spokesman for the Opposition in the other House when they both felt that a period longer than one year was necessary in respect of the first review in particular. If I quote the situation correctly,  the Minister originally introduced this amendment on the basis of a review after five years. It is a very welcome amendment and a very constructive insertion of a new section into the Bill after its introduction but before being passed by the other House. There were three schools of thought on it. I do not think anyone objected to the review. The Minister held the view that five years was the best; the Opposition spokesman held the view that three years was appropriate, and Deputy de Rossa and some other people held the view that one year was correct. Obviously the Minister and Deputy Woods arrived at a compromise between three and five years. That took place during Committee and Report Stages in the other House. The matter is reported at column 1626 and the following columns of the Official Dáil Report of 10 April 1984.
The points being made by Senator Robinson are valid. We need to review the Bill. It would be useful if the review was of a continual nature and that the Dáil and Seanad were not limited to one review and one review only. What I really have not come to any set view on is whether the review should be on an annual basis, after the lapse of a period to allow it get into operation. I suspect an annual review would be too often and would bore the people and the Members of the House, and eventually the review would be dropped and it would either become a formality or alternatively amending legislation would remove the necessity for a review.
I would suggest to those who are moving the amendment that they might consider the alternative of agreeing to the four year review. I think the four year review is sensible but introducing a later amendment would permit the Houses of the Oireachtas after the first four year period to review it either annually or preferably less frequently than annually, so that attached to each review there would be a sense of occasion, that it would be a parliamentary occasion for which the Members would prepare; that it would be something for which the Minister would be expected to produce statistics, and to show what the effect of  the operation of the various sections has been over a period. I will develop the idea a little more when we are discussing the section. I feel that a review after an initial period of 12 months will play into the hands of those who feel that these powers should be given to the Garda Síochána and the various other authorities, and that they should be given without any review, but a review after 12 months because of the absence of information will be no review at all.
Mrs. McGuinness: I support the amendment of Senator Robinson and Senator Higgins. I would like to thank the staff of the House for their admirable speed and efficiency in reproducing the proper amendment in a couple of minutes when it was pointed out by the Cathaoirleach that there was an error in the printed copies. I thank them for their efficiency in bringing in separate sheets to us all within a very short time. When talking about this amendment we must give credit to the Minister for the fact that he brought in this section and that he understands the necessity for a review. There is not a great deal I can add to what Senator Robinson, Senator Higgins and Senator Ryan have said about the necessity for a review. I will not take up the time of the House by going over the same arguments again.
With regard to the timing which Senator O'Leary referred to, to some extent I am open to some of his persuasion, but four years is too long a time. I can understand what he means by one year being too short a time, although I feel that just as many times as the prosecution comes in and says that the Book of Evidence is not ready or the garda is not available, the defence puts forward curious excuses for adjournment. I see the point the Senator is making, but if we leave it for four years it may turn out to be so well established by the end of that time that it would be very difficult, whatever evidence is brought forward in the review, to get the sections changed. The principle of continuing review is very important because it is a place in which the Legislature  can play a creative role to show that what we are here for is to ensure that we have a good legislative system rather than simply going in for excesses of clientism. Therefore, I support the amendment on the grounds of regular and continuing review. I am not sure whether every one year or two years, would be the most desirable. The first reviews should be at least within a period of two years because once it got going for four years it would be very difficult to get it changed in any way.
Mr. Durcan: I agree with the views expressed by Senators in so far as the powers conferred on the Garda by this Bill should be monitored. The powers must be seen generally as open powers. They should not be operated in a secret way. People should know how they operate. I do not agree, however, that the two amendments before us resolve the problem. The Commissioner of the Garda Síochána should have a statutory obligation to provide us with annual statistics indicating how sections 4, 5, 6, 7 and 8 in particular have operated. I am speaking on the basis that the Bill would at least be in operation for four years and possibly if a resolution is passed by both Houses it will be in operation thereafter. On the basis I and the public would like to know the number of people arrested under section 4, the number of people detained under section 4, the number detained for a second six-hour period under section 4, the number of people subsequently prosecuted and the number of people successfully prosecuted under that section. I would like to know the number of people searched, photographed, fingerprinted and so on under section 6. This information, if this Bill becomes a permanent part of our criminal code, should be available on an annual basis through the office of the Garda Commissioner.
I do not think that the one-year reviews specified in the amendment answer the question. It will take a number of years to see how this Bill operates. The Minister met the point well in the Dáil when he introduced this new section — it was not contained in the original Bill and a  consensus, generally was achieved between the principal parties in the Dáil and the four-year period was agreed upon. It is a reasonable period within which to observe the Bill and see how it operates and to consider at the end of that period whether it should be reviewed.
During the four-year period I would like annual statistics. It is only on the basis of that statistical data that one can see whether the Bill is operating sucessfully. It is only on this basis that one can see whether the Bill is going some way to answering the increasing crime problem. I do not see these amendments dealing with that question. I would like to see a provision introduced in this Bill which would impose a statutory duty on the Garda Commissioner to furnish us with annual statistics as to how sections 4 to 8 of the Bill operate.
Mr. E. Ryan: My initial reaction to this section is one of relief that there is a review of some of these sections at the end of a period and that it is a positive review. In other words, if the Minister wants to continue these sections in operation he must bring in a motion to have them approved. It is one of the redeeming features of this Bill, one which I welcome and which might well be considered in other Bills of this kind.
The very fact that there is this provision for a review will go a long way towards avoiding abuse of the powers provided in the Bill. The Garda, knowing that these powers are to last for only four years without being renewed will realise that they will have to use these powers very carefully indeed or probably they will not be renewed. It is a redeeming feature of the Bill.
As regards the exact time, I find myself somewhere between the Bill as it stands and the amendment. Probably about three years would be correct. One year is too short and if it had to be done every year it would have the wrong effect. I agree with Senator O'Leary that it might become simply automatic if it was done every year. Whereas perhaps four years is a little too long, on balance I do not  disagree with it. I cannot support this amendment.
Mr. Noonan: (Limerick East): First of all, I would like to fill in the background of how we arrived at this section in the Bill. On Second Stage in the Dáil it was suggested that there should be a time limit for some provisions in the Bill. These related to the increased powers for the Garda and the withholding of information about firearms and stolen goods, and those dealing with the drawing of inferences from a failure or a refusal to account for certain marks and so on. At that time I was reluctant to agree to a time limit because I was afraid that the whole Bill would be interpreted as some form of emergency legislation and not something which was envisaged as part of the corpus of our criminal law. The Government did not approach the Bill, nor did their predecessors, on the basis that it was emergency legislation. On Committee Stage here and on Committee Stage in the other House I have argued for the merits of sections in their own right. The Government felt, however, on consideration of what had been said in the other House that it was reasonable to provide for a review by the Oireachtas on the way in which these provisions operated in practice. I, therefore, moved an amendment on Committee Stage proposing a five year limit on these provisions unless they were continued in force by resolutions of the Houses. The main Opposition party, indeed the Labour Whip, talked about three years at that time. The Workers' Party suggested one year. Having listened to the debate, I said I was prepared to go back on Report Stage and on that stage I introduced an amendment changing the five-year time embargo to four years. That established a consensus in the House. The Workers Party on Report Stage had upped the bidding to two years, so I brought them some of the way on the strength of the argument that one year would be very short indeed.
I do not believe it would be reasonable for a Minister to come before the Dáil and the Seanad and look for authority to continue the sections in operation unless  he was able to produce adequate statistical material covering a period long enough to enable an informed decision to be taken on whether to continue them. I do not believe that material could be available in 12 months. There is a question of whether the first 12 months even would be typical of the operation of the Bill as a whole because only at that stage would it be introduced. It might not necessarily be operated in the first 12 months as it would operate subsequently. A period of 12 months is much too early to have a review of the position. For example, supposing these elections commenced on 1 October — I am not saying which year because we have the complaints procedure to deal with yet — I, as Minister, or a subsequent Minister would have to be in a position to have a statistical basis for an opinion going to Government and then to the Oireachtas. On a 12-month period the shutter would come down somewhere around the month of April. Therefore, we would be tied to a review on the basis of a run from October to April. It would then go to Government because a Minister would want to get it out of the way before the Summer Recess. Senators can see the practical difficulties that would arise because 12 months would not be 12 months at all.
Senators' remarks have concentrated almost exclusively on section 4. Of course, there is a time limit on other sections also. For example, the sections on withholding of information and on inferences. I do not think there will be an adequate informed opinion on the part of any Minister until particular cases in which these sections are applied have gone through the courts and through the appeals court or maybe gone as far as the Supreme Court. We are talking about a reasonably long run of time. One can argue on section 4 that we may be able to do something more quickly. That argument can be made although I do not agree with that argument for other reasons. Once one goes on to the sections dealing with court procedure it is important that there would be experience of how cases are dealt with in the courts and the appeal courts. I do not think a Minister should  come back on the basis of one court case or experience. It is important that it would be evaluated over this period.
The question of the availability of statistics, especially in regard to section 4, is very important. The draft regulations I have been talking about dealing with the treatment of people in custody will deal also with requiring the keeping of certain records which will be the base for the statistics which are required. I would see a situation where, as I have outlined in the short module of time, over 12 months, in effect a Minister would have to be in a position at the end of, say, three years, to prepare to get this into the House, to provide the Government, and, subsequently, both Houses, with adequate information to enable them to review the workings of these sections, the detention sections and those dealing with court procedures. Four years is the shortest period in which I could say that either myself or subsequent Ministers would be in a position to come back here with the kind of information that would be necessary.
There is, of course, no inhibition on anybody in the Houses of the Oireachtas from putting Parliamentary Questions about the operation of any of the sections of the Bill. If the statistical base is there then questions can be answered. That information will provide a de facto monitoring of the manner in which the legislation is operating. Also, there is nothing to prevent a Minister from bringing in amending legislation. The fact that this section of the Bill says it will be reviewed in four years time does not prevent a Minister from bringing in amendments to sections of the Bill, if he thinks it appropriate to do so within a shorter time scale.
The question of whether there should be further reviews after the initial major review at the end of four years is something that people in four years time should evaluate. Section 2, as drafted, would bring about a situation that if the Houses of the Oireachtas resolved that the section should continue in operation it would continue indefinitely. However, if there was a strong view that it should not continue indefinitely, I cannot see  why a Minister would not bring in a very simple amendment to section 2 of the Criminal Justice Bill, 1983, saying that these would remain in operation for another four years after which there would be another review. I do not think that we need to go down that road now. Certainly, there is nothing to prevent people in four years time from doing that if they think it is appropriate to do so. A four-year period is about right. It was not a kind of a trade-off where people were bidding three, I was offering five and we settled for four. We considered very carefully what the appropriate term would be.
Mr. Noonan: (Limerick East): I will see what the present situation is. If the Senator wants the information I will provide him with as much information as I can. I am aware of the work of Dr. Rothman. He was appointed by the Government to the Whitaker Committee on the Penal System.
Senator Seán O'Leary talked about  delays in courts and quoted the 1983 crime statistics. I am afraid that Cork is the unfortunate exception to the general rule. There are great delays in Cork on both the civil and criminal sides. I have said spoken about this previously. I have said sharpish things about the legal profession in Cork which I am not going to repeat. On the question of one-third of crime shown in the 1983 crime statistics not being dealt with until subsequently, if one thinks about it, there is nothing unusual about that. In the case of crime that will be committed from now until the end of the year it is unlikely that anything but a small proportion of it will be dealt with by the courts until 1985 at least. At the end of any year there is the carry-over between crime committed, crime detected and crime taken through the courts. Of itself, it does not indicate a major delay in the courts. I am aware that there is a particular problem in Cork and in particular with the Circuit Court. I believe we appointed a second Circuit Court judge to Cork some months ago to specifically deal with that problem.
I do not think there is any other point I need to comment on at this stage but I ask the House to accept a revision at the end of four years. The question of statistics will be provided for in the regulations. There will, of course, be statutory regulations which will be binding on the Minister. There is nothing to inhibit a Minister for Justice of a subsequent Government introducing amending legislation within the four-year period if that was seen to be necessary.
Mrs. Robinson: There were a number of contributions to this amendment to some extent looking at it from different perspectives and, indeed, appearing to be somewhat in conflict. At the same time there is a general appreciation of the underlying principle of this amendment, our concern to have a system of review, indeed, to have accountability for the powers that are being conferred. I would like to deal with some of the substantial arguments or points made on this amendment and then to respond generally to the debate on this amendment.
Senator O'Leary began by expressing  concern that the amendment might have the unintended effect, as he saw it, of playing into the hands of those who want this legislation to be a permanent feature of our criminal code. The Minister, on the other hand, appeared to lay great emphasis on not regarding the particular sections that are being highlighted, in both his own section brought in by way of amendment and in this amendment, as in anyway to be characterised as emergency legislation — I take it he means exceptional legislation.
Mrs. Robinson: What I would say is that it is a fairly widely shared concern that we are substantially extending the powers of the Garda. As it stands we are doing it in a permanent form. Yes, this Bill might be amended subsequently but as it stands at present it is a permanent form. As the Minister has brought in an amendment in the form of section 2 as it now stands there is an opportunity for a once-off review. The Minister has said that four years after the sections have been brought into operation a Minister might bring in an amending Bill. With respect, Ministers are slow to find themselves in the position of having to bring a Bill before the Government — get the Government's permission to bring the Bill before the House — process it before the summer recess and so on. I would prefer if we would get ourselves in the position, while we have the Bill before us, of having the capacity for further review. I hope that the principle of review and further review might meet with broad support in the House. That is the first point.
There was a general awareness of some of the reasons why there should be a review. Senator Durcan referred to the importance of having adequate statistics made available to us. He said that he would favour an amendment. I do not know whether he proposes to put down an amendment on this on Report Stage or if he is satisfied that the Minister will, in the regulations, require the Commissioner  for the Garda Síochána to provide annual statistics. That is one component of having this kind of monitoring and review. It is an important aspect of it to have adequate data. It has not been provided in the past and there are many reasons why it is necessary that we have it in much more extensive form.
The fundamental principle which this amendment seeks to achieve is that there would be a continuous, serious parliamentary review which would generate an accountability on the ground. If those who are implementing this in the Garda station know that there is going to be an annual review, it will affect how they exercise the powers. It would be a great bonus if the review were a dead issue because it would mean there was no cause for concern regarding the way the powers were being operated. On the contrary, the review is necessary and it should be a serious one. It is very unlikely that it would become such a matter of form. I have a considerable file of correspondence, and I am sure that other elected representatives have also, of people who have either personally or indirectly come in contact with some abuses of the existing powers of the Garda and the practices which obtain in certain Garda stations. I have no doubt that the review would be a very serious and significant part of the monitoring and accountability for the exercise of powers which we propose to confer on the Garda under the Bill.
I should now like to turn to another important issue which has been raised about whether 12 months is too soon for a first review and whether an annual review is unrealistic and could defeat the objectives which I have been outlining. First of all, I will take the first 12 months. I take, to some extent, the point which Senator O'Leary was making — and indeed the Minister referred to this — in relation to the section which refers to inferences drawn and accounting for marks and materials and so on in the course of actual trials where you may have trials within trials and appeals from trials. There would be very little reporting on those sections in the first review if it happened within 12 months of bringing them into operation. The more significant  sections when it comes to monitoring how they are in operation — they are not concerned with trials at all, they are concerned with what happens in the Garda station, the total pre-trial process — are what we are substantially extending: the pre-trial powers in relation to holding a person in a Garda station, detaining for questioning, what can be done and what safeguards there may be when the person is so detained. We are talking particularly about sections 4, 5 and 6, the way in which the regulations are being implemented in practice which will be part of the review and ultimately in subsequent years relate to section 8 in relation to the destruction of records and so on.
The first 12 months will be a significant time. It may be a time when the powers were exercised in a different manner than subsequently. That could well be because following the first review certain procedures could be changed: this could well be what would emerge. We have to take it that the powers will be exercised. The Minister tells the House he needs these powers and the Garda need these powers to detain people. As a result they will be detaining people for questioning under section 4, they will be exercising the details of the various things they can do when they detain; they will be fingerprinting, and so on. Gardaí will be taking young people in and they will be implementing the sections which require that a solicitor be notified. We will want to know how, in practice, that is happening and the problems that may be emerging. In the case of young people they will be notifying their parents or guardian. How is this going to operate on the ground?
I can accept that it would be difficult to have completely comprehensive data in the full calendar year, if you have a review after 12 months, but what would emerge is the broad pattern of how the Act was operating on the ground, the specific problems which had arisen, the specific patterns of abuse of the powers in the sense that they were being used in a way which was unforeseen by those of us who have examined the legislation or which gave us cause for concern. Ultimately over several years perhaps we would see a pattern emerging of the kind that  Senator Higgins has given details, where the net was cast very widely and there appeared to be a disproportion between those arrested for questioning under section 4 and those ultimately charged with the offence or offences for which they were so arrested under that section. I am not suggesting that you would have to have charges preferred in almost every case but there comes a stage — and it appears to have come in relation to section 30 — where there is disproportion which gives cause for concern.
I do not accept the Minister's suggestion that the functioning of the Act can be scrutinised by way of parliamentary question. This is a way of eliciting some statistical information but it is largely an effective blocking mechanism to prevent any in-depth inquiry or follow-up. The skill in answering parliamentary questions is not to answer them, as the Minister well knows, or to answer them in the least revealing way possible. It is also ad hoc and not in any way a structured monitoring of the Bill.
I say to Senator O'Leary and other Senators who felt that 12 months may be too short that the period is not short if we see the purpose of the monitoring after 12 months has been two-fold. First, to ensure from the very beginning that there is an awareness of accountability and, therefore, that care is being taken by those in the Garda stations who are going to implement the powers under the Bill. There is an immediate value and an important gain in their knowing that within one year the matter will be coming before both Houses of the Oireachtas, and that they may lose these powers which they have said they need in order to cope with aspects of the crime problem now.
Secondly, I believe that within 12 months we should have a reasonable pattern of behaviour in relation to those powers which are pre-trial powers: the powers to detain in the Garda station, which in very large measure, are the ones which cause most concern. The sections which allow inferences to be drawn may give rise to trials within trials in the course of hearings before the criminal courts and there may be a great teasing out of the  way in which those sections work. The question is how this detention power and what the Garda are empowered to do, and how the safeguards which have now been written into this Bill and which I hope will be further written in in the course of the Committee Stage in this House, will operate in practice. Although I welcome the questions that have been posed by some Senators in relation to whether the first review called for in this amendment is too early and then too often to achieve the purpose, I press the House to accept this amendment as being the appropriate monitoring of very far-reaching powers.
We are going very far in giving powers to the Garda and there is, as has been stated many times, a very real concern about them. We show our responsibility as legislators by building in this mechanism for review. In an area where you are talking about the powers to be exercised in questioning persons, interrogating them, and detaining them for that purpose, I do not believe having listened to this Committee Stage debate, that we will get to the stage of an automatic review in this House. On the contrary, I believe that it would be a very effective check and balance to compensate for the extent to which we are giving very far-reaching powers in this Bill.
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