Garda Síochána Bill 2004 [Seanad Bill amended by the Dáil]: Report Stage (Resumed).

Wednesday, 29 June 2005

Seanad Eireann Debate
Vol. 180 No. 27

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Question again proposed: “That the Bill be received for final consideration.”

An Cathaoirleach: Information on Rory Kiely  Zoom on Rory Kiely  I call on the Minister for Justice, Equality and Law Reform to speak on the subject matter of the group 4 amendments, Nos. 15 to 24, inclusive.

Minister for Justice, Equality and Law Reform (Mr. M. McDowell): Information on Michael McDowell  Zoom on Michael McDowell  Before addressing the group 4 amendments, last evening in this Chamber, Senator Higgins made allegations in regard to the Garda Commissioner. He suggested in particular that he had misled the public. He suggested also that I had shown shock in public at a misleading statement of the Commissioner and further sug[2348]gested that I had probably in private reprimanded him on that account. These were very serious charges to lay against an office holder of the status of the Garda Commissioner.

Given that Senator Higgins indicated to the House that all would be revealed in good time, I made it my business this morning to contact the Garda Commissioner to find out the truth of the matter, namely, that there is absolutely no truth whatsoever in the allegations made by Senator Higgins. The truth of the matter is that Commissioner Conroy was only apprised of the alteration of the status of this investigation on the PULSE system in November 2004, he immediately communicated with the relevant parties, he was in no way personally involved in that decision prior to that and the allegations made in this House by Senator Higgins are totally untrue.

I knew they were untrue as regards myself because I was present when the Commissioner made the remarks in public. The Commissioner is a man of transcendent honesty and decency.

[2349]Ms White: Information on Mary M. White  Zoom on Mary M. White  Hear, hear.

Mr. M. McDowell: Information on Michael McDowell  Zoom on Michael McDowell  He would not mislead the public in this way. The suggestion that I reacted by surprise or incredulity to his remarks is wholly malicious and completely false. The suggestion that I reprimanded or had a conversation in private with the Commissioner in regard to this issue is completely false. The suggestion that the Commissioner had any involvement, good, bad or indifferent, with the decision to alter the status of the Barron investigation on the PULSE computer is completely untrue, malicious and false.

I put that on the record of the House and invite Senator Higgins to come to the House to retract every word he spoke here last night. I am here to defend myself and will always do so in these circumstances. However, these allegations were made against a person who was not in a position to defend himself in the House. As I said, he is a man of transcendent honesty. I deeply regret that last Friday he was asked to consider his position by Senator Higgins. I regret doubly that yesterday he was the subject of an untrue attack in this House in circumstances which were unworthy of Senator Higgins and unworthy of a Member of the House. The allegation was made in irrelevant circumstances and was out of order on a group of amendments that had nothing to do with the issue on which he spoke. As the House will recall, I had to intervene on a point of order to prevent further irrelevancies of that kind happening. I want it clear in this House that the Commissioner told the absolute truth when he responded to that question in public. The imputation that he did not was an unworthy one.

On the amendments, section 10 in the version of the Bill as passed by the Seanad provides for the appointment by the Government of deputy and assistant Garda Commissioners. However, section 11 which provides for the removal of the Garda Commissioner, appointed under section 9, or a deputy Garda Commissioner, appointed under section 10, makes no provision for the removal of assistant Garda Commissioners, also appointed under section 10. The amendment, which I brought forward on Report Stage, included assistant Garda Commissioners in section 11 for the purpose of their being removed from office. Accordingly, section 11(1) now applies to the three top officer grades in the force and it sets out the grounds on which for stated reasons only they may be removed from office. These relate to, first, failure to perform the functions of the office with due diligence and effectiveness or, in the case of the Commissioner, a failure with respect to the matters set out in section 26(2) of the Bill, second, engaging in conduct that brings discredit on the office or which may prejudice the proper performance of the functions of the office, or, third, such removal being in the best interests of an Garda Síochána. Amendment No. 15 is a consequential amendment to section 10 to make it clear that assistant Garda Commissioners continue in office subject [2350]to the provisions of section 11 and not subject to the regulations.

Amendments Nos. 17 to 19, inclusive, and amendment No. 22 are technical drafting amendments proposed by the Parliamentary Counsel who advised that the changes are necessary for the purpose of ensuring consistency with normal drafting conventions. This is to do with the use of word “direct” instead of “require”. Amendment No. 23 is a textual drafting amendment proposed by the Parliamentary Counsel to improve the text of section 12(4)(c).

The purpose of amendment No. 20 to subsection (3) of section 12 is to provide additional scope to the person appointed under subsection (2) to conduct an inquiry or to give any other direction which he or she considers necessary, just and reasonable in the circumstances of the case concerned. Every case will have to be considered on its merits. I would not want to restrict the appointed person in terms of the directions he or she may wish to give for the purpose of the inquiry by attempting to set out in the Bill every type of direction that might be necessary.

With regard to amendment No. 21, I indicated on Committee Stage in the Dáil that it would be necessary to include a provision in subsection (4) that where a person fails or refuses to comply with a requirement made by a person appointed by the Government to hold an inquiry, the High Court should have the power, first, to order such persons to comply with that requirement and, second, to make such other order, if any, as it considers necessary and just to enable the requirement to have full effect.

As it stands, the subsection is a punitive provision only. Similar provisions are contained in the Tribunals of Inquiry (Evidence) (Amendment) Act 2002, the Committees of the Houses of the Oireachtas (Compellability, Privileges and Immunities of Witnesses) Act 1997, and the Commission to Inquire into Child Abuse Act 2000. This provision will have the same effect. In other words, it is not simply just a criminal offence not to comply with a direction of an inquiry but something can be done about it. If somebody for whatever reason refuses to do his or her duty under this statute, criminal sanctions are one way of approaching the matter but, as in the case of former Deputy Liam Lawlor, it is also necessary on occasion that the High Court can require somebody to do something, and punish if they do not comply as a contemner — in other words, under the contempt of court arrangements of the High Court. Otherwise, people would brazenly not co-operate with inquiries.

Amendment no. 24 was necessary as a result of changes made in the original text of section 13. Subsection (1) of that section dealt with appointments to the ranks of chief superintendent and superintendent while subsection (2) referred to the remaining ranks of inspector, sergeant and garda.

In light of the strong comments in the second Morris tribunal report, which, in the context of [2351]the tribunal’s concerns with the fact several members of the Garda Síochána who were severely criticised in its first report continued to serve, recommended that a new means for removing gardaí from office should be considered, I inserted a new provision in section 14 of the Bill providing for summary dismissal by the Commissioner. This applies to the ranks of gardaí from inspector downwards, and it is analogous to the power that is currently vested in the Government in regard to the ranks above inspector. We will come to this matter later in the context of the amendments listed in group 10. Amendment No. 24, therefore, only deals with chief superintendents and superintendents and it means that section 13 as it now stands refers only to those ranks in terms of their appointment and dismissal. In this latter respect, it applies the provisions of sections 11 and 12, which refer to the removal of a Commissioner, deputy Commissioner and assistant Commissioner to those two grades of office holders.

Mr. Cummins: Information on Maurice Cummins  Zoom on Maurice Cummins  We support the amendments in this grouping as outlined. To include the word “direct” rather than “require” strengthens the intent and content of the Bill. We would be concerned that due process would apply in any area where dismissal would be considered. However, the procedures contained in sections 11 and 12 adequately deal with this matter. The Minister has also addressed the issue relating to inquiries. We believe it is necessary that these amendments would form part of the Bill also.

Ms Tuffy: Information on Joanna Tuffy  Zoom on Joanna Tuffy  We have no difficulty with these amendments. I do not have anything to add to what was said by Senator Cummins.

Mr. M. McDowell: Information on Michael McDowell  Zoom on Michael McDowell  I have nothing further to add.

An Cathaoirleach: Information on Rory Kiely  Zoom on Rory Kiely  Is the grouping agreed? Agreed. We move to group 5, the subject matter of amendments Nos. 66 to 114, inclusive, 116, 119, 120, 136 and 137.

Mr. M. McDowell: Information on Michael McDowell  Zoom on Michael McDowell  In the main, the purpose of the amendments made to the ombudsman commission provisions of the Bill was to provide for the appointment of a chairperson of the ombudsman commission. On Committee Stage in the Dáil, I accepted in principle the point made by Deputies Jim O’Keeffe and Joe Costello that it was desirable that one of the members of the commission should act as its titular head and as chairperson in that capacity. The other amendments here, including those to Schedule 4 of the Bill, are consequential upon that change.

The amendment dealing with absences by the chairperson are consequential upon the change to appoint a chairperson to the ombudsman commission. The provisions are standard ones. [2352]Similar provisions are to be found in the Competition Act 2002.

Concerning amendments Nos. 70 and 71, the Fine Gael justice spokesperson raised this matter on Committee Stage in the Dáil on the basis that the wording of the subsection might be taken as precluding the ombudsman commission from reporting to the Garda Commissioner when it reports to the Director of Public Prosecutions. This is clearly not meant to be the case. As a consequence, the Parliamentary Counsel redrafted the section to clarify that the Garda Commissioner should be notified about all reports prepared by the ombudsman commission, including those sent to the DPP.

Amendment No. 72 was made on Report Stage in the Dáil in the light of the introduction of the chairperson provision. Originally it was intended that this would be a matter for the commission to decide between its members, with possibly one of the members being designated to deal with management and administration matters generally. With the introduction of the chairperson provisions, I decided that the chairperson should be responsible for the management and control generally of the commission’s officers and the administration and business of the commission. It is not merely a titular head of the commission; the public face of the commission will be a chairperson who will also actually manage its business.

There are two schools of thought on this matter of the composition of the office of the ombudsman. Some think there should only be one person in the job, others think that a commission of three would be advantageous. The advantage argued for one person centred on the notion that there should be a publically recognisable face to the ombudsman and that it should not be an anonymous body, the members of which were not known to the public. In so far as a compromise could be reached between the two provisions I have done this in deference to the Opposition spokesmen in the debate on Committee Stage.

Amendments Nos. 73, 74 and 75 arose from the debate on Committee Stage when questions were asked about the appropriateness of including a reference to bankruptcy when a judge could be involved. Having reflected on the matter, I decided to remove the reference to bankruptcy. The other changes were made in the light of that discussion and to bring the provisions into line with similar provisions in other legislation.

Amendment No. 76 was brought forward in the light of the debate on Committee Stage in the Dáil when questions were raised on how the ombudsman commission would conduct its business and related matters concerning the basis for decisions being taken. My amendments on Report Stage are based on other similar legislative provisions such as those in the Competition Act 2002. They provide for such matters as the quorum for meetings and the basis for decision making. This will be by way of a majority of the votes of the members present and voting on the question. Provision is also made in the case of an [2353]equal division of votes. In such cases the chairperson, or the member presiding, will have a second or casting vote. Provision is also made for the ombudsman commission to regulate its own procedures.

Regarding amendment No. 77, I gave a commitment on Committee Stage in the Dáil that I would examine this matter on the basis that it might appear that all of the existing staff of the Garda Síochána Complaints Board could be designated by the Minister for service with the new ombudsman commission. That was never going to be the case for several reasons, including that relating to the Government’s decision to decentralise the Garda Síochána Complaints Board which the ombudsman commission will replace. That is a decision about which I wish to think further. I mentioned to Senator Hayes that I want to ensure a decentralisation decision does not affect the workings of this board. In any event the term “any” has replaced “every” in case it was argued that every member had to transfer.

Amendments Nos. 80, 81, 82, 84, 96, 97, 98, 100, 105, 107 are technical in nature. They were made on the advice of the Parliamentary Counsel with a view to improving the text. Amendment No. 83 relates to section 71(3), entitled Accountability to other Oireachtas Committees. The point came up during the Committee Stage debate in the Dáil that the wording of this subsection might be unduly restrictive in ruling out comment by the ombudsman commission to an Oireachtas committee, other than the Committee of Public Accounts, on any matter that has been before a court. Accordingly, I amended the wording, substituting the words “is or is likely to be” for the wording “is, has been, or may at a future time be”. The amended wording reflects probability rather than the technical possibility that a matter might come before a court as a reason the ombudsman could not comment.

Concerning amendment No. 85, the provision at subsection (10)(b) was added to address an inconsistency between section 70(2) and section 71(10). This was brought to my attention by the Fine Gael justice spokesperson on Committee Stage. It involved the insertion of paragraph (b) into to the text of 71(10).

Amendments Nos. 86 and 87 are simply to transpose subsections (5) and (6) in the Bill so that the provisions in what is now subsection (6) will apply to all reports from the ombudsman commission. Amendments Nos. 88 and 89 relate to the section on the Garda inspectorate and commissions of investigation. These are technical amendments which provided for the inclusion of the Garda inspectorate or an officer of the inspectorate and a commission of investigation in the list of bodies to which disclosures of confidential information could be made. In the latter regard, this amendment was made in response to an observation by the Fine Gael justice spokesperson on Committee Stage that a commission of investigation established under the Commissions [2354]of Investigation Act 2004 should be added to the list of bodies in section 73(4).

The purpose of amendments Nos. 90 and 91 was to include the Garda Commissioner as a person to whom a complaint may be made about alleged conduct constituting misbehaviour by a member of the Garda Síochána. This was always the intention. Amendment No. 92 is a technical drafting amendment as advised by Parliamentary Counsel. Amendment No. 93 is necessary to cover the situation where a complaint may be made to a member of the Garda Síochána at or above the rank of chief superintendent at a place other than a Garda station. Its purpose is to ensure that in such cases the Commissioner is notified of the complaint and receives a copy of it. If the complaint was not in writing, a copy of the record of the complaint must be sent to the Commissioner.

Amendment No. 94 is a consequential amendment to amendment No. 90 in the context of the receipt of complaints by the ombudsman commission. Amendment No. 95 deals with the need for the ombudsman commission to notify in writing not only the complainant and the Garda Commissioner of its decision that a complaint is inadmissible, but also the member of the Garda Síochána whose conduct was the subject matter of the complaint. This matter was drawn to our attention by the Garda Representative Association and it is a basic requirement of fairness in such circumstances that the person about whom the complaint is made should be notified.

As a further incentive to members of the force to use the informal resolution procedure, I was impressed with a point made to me in the course of discussions with the Garda Representative Association. That is the purpose behind Government amendment No. 99, which is designed to ensure that if a complaint is resolved informally, and while the Commissioner as the manager of the force is notified of that fact, any record of the complaint held in Garda records must be expunged. This will ensure that, in so far as the member is concerned, his or her agreement to use the informal resolution procedure will not be held against him or her in any way whatsoever in terms of his or her future career and prospects within the force. A garda will not settle cases informally if the record of the complaint is always there, like a ticking bomb, ready to destroy the garda’s career at a later stage. He or she would stand on his or her rights and would refuse to apologise in order to stop the row. There would be no informal acceptance of wrongdoing or guarantee not to repeat the behaviour. That kind of response, without a formal complaint, is sometimes necessary.

The Commissioner will already be aware of the fact that a complaint will have been made against a member and of the fact that the ombudsman commission will have decided to rule it admissible or non-admissible. If in the former case the commission intends to deal with the matter under the informal resolution procedure by agreement with [2355]the parties, the position will be that the Commissioner will be informed accordingly and that will be the end of the matter. Any records held by the Commissioner about the matter will be expunged.

Section 86 is the subject of amendment No. 101. The purpose of this amendment was to clarify the position relating to reports of investigations of complaints carried out by the Garda Commissioner which are supervised by the ombudsman commission and which reveal that a criminal offence may have been involved. The Bill was silent on this matter, but it now deals with this eventuality in that it provides for the ombudsman commission, after considering a report to the Garda Síochána investigating officer, to either direct a designated officer of the commission to investigate the complaint in accordance with the procedures for investigating complaints involving offences, or to comply with section 93(2) as though the report of the investigating officer of an Garda Síochána had been made to a designated officer of the ombudsman commission under section 93(1), in which case it would be referred to the DPP.

Section 88(10) is the subject of amendments Nos. 102 and 103. Subsection (10), as originally formulated, provided that any information, document or thing provided by a person in accordance with the requirement under subsection (1)(a) or subsection (3)(a), or with a direction under subsection (6) would not be admissible against that person in civil or criminal proceedings. I amended this provision on Report Stage to remove the reference to “civil” as I considered it inappropriate to remove the possibility for civil proceedings, notwithstanding that an admission had been made or that information had been supplied suggesting wrongdoing. While exempting such information for the purposes of criminal proceedings was clearly in order, I could see no basis for having it in the case of civil proceedings.

Take, for example, a case where somebody sues a member of an Garda Síochána for assault and that garda has admitted the assault to the ombudsman commission. To render that admission inadmissible and to require the person who knows it was admitted to prove it by some other means would be an unjustified obstacle to civil justice, as opposed to criminal justice being achieved.

Amendments Nos. 104 and 106 arose in the context of clarifying the status of the report of the ombudsman commission upon its transmission back to the Garda Commissioner for the purpose of taking disciplinary action. Some doubt was expressed regarding the status of such reports when submitted to be dealt with under the disciplinary process. These amendments simply provide for the inclusion in the ombudsman commission report of a statement of the facts established by the investigation and the status to be accorded the commission’s report in any disciplinary proceeding.

[2356]Section 90 is the subject of amendments Nos. 108 to 114. These were technical amendments advised by Parliamentary Counsel. The intention is that the powers, immunities and privileges associated with the matters referred to subsection (1)(a) to (1)(g) should be exercisable by the ombudsman commission against any person and that the provision of the section should not be limited to a member under investigation, as was originally provided for. Members can understand that a situation could easily arise where a person would resign and therefore cease to be comprehended by the term “member”.

On amendment No. 116, in keeping with the other oversight provisions in the Bill, I decided on Report Stage in the Dáil that the Minister’s consent should be sought in circumstances where the Garda Commissioner considers the disclosure of information could prejudice a criminal investigation or prosecution, or prejudice the security of the State, or prejudice the safety of any person. There is a clear need for an adjudicator in circumstances where there might be a difference in opinion between the Garda Commissioner and the ombudsman commission. If the Garda Commissioner says something would prejudice a criminal trial and the ombudsman commission says that is rubbish, somebody must decide whether it is a valid ground for objecting. A referee must be put in place. The Minister would seem to be the appropriate person to perform this function because, as we will see in another context, the Minister, through the Secretary General, is entitled to send for any record in the possession of the Garda Síochána. If there is an argument as to whether something would prejudice the security of the State, the Minister will be in a position to look at a file and agree or disagree.

Amendment No. 119 was made on the advice of Parliamentary Counsel. It provides that the publication of any statement made without malice by a member of the ombudsman commission is also privileged for the purpose of the law of defamation. Amendment No. 120 provided for the inclusion of the Garda Síochána inspectorate, along with the Garda Commissioner and the Garda Síochána ombudsman commission, in the consultation process when regulations are being made by the Minister under the Act. It was a consequence of my amendment to the Bill which provided for the establishment of the Garda Síochána inspectorate.

Mr. Cummins: Information on Maurice Cummins  Zoom on Maurice Cummins  When the Bill went through this House several Members expressed their doubts on the three-person commission. The same doubts were expressed in the Dáil. The Minister has come some way by suggesting that a chairman of the commission should be appointed, but I believe this is a fudge. The Minister and the public know this. There is a demand for a Nuala O’Loan type figure to investigate wrongdoing within the Garda Síochána.

The strength of single independent ombudsman was demonstrated again last week by Kevin [2357]Murphy, the former State Ombudsman, when he criticised the failure to allocate political responsibility with regard to the nursing home scandal. The revelations arising from the second report of the Morris tribunal demand that a single, powerful, independent ombudsman be appointed to monitor the Garda Síochána. A three-person body, even with a chairman, remains a fudge.

The Minister has gone on record as saying that a single ombudsman would pose a problem were he or she to go on holiday. We have a single Ombudsman in Emily O’Reilly, in the children’s ombudsman, Emily Logan, a single information commissioner, a single insurance ombudsman, a single data protection commissioner, one director of corporate enforcement and one Minister for Justice, Equality and Law Reform, yet the Minister says that a single Garda ombudsman would be unworkable and unacceptable. That argument does not stand up in the circumstances. We need a single exemplary person, like Nuala O’Loan, unfettered and free to act in the public interest.

A number of the amendments put forward are technical and we agree with them. We are pleased that a number of the observations made by our spokesperson in the Dáil, Deputy Jim O’Keeffe, have been taken on board. We support the situation where, if a complaint is made against a garda, he or she should be notified of it. On the matter of a referee, we do not know the Minister’s ability as a referee, but we accept his bona fides as regards the security of the State.

Senator Brian Hayes will deal with some specific matters. Fine Gael still believes that we should have one ombudsman rather than a commission.

Ms White: Information on Mary M. White  Zoom on Mary M. White  When the issue of a three-person commission came up in our earlier discussions, I did not feel it was the right solution. We have just one Minister for Justice, Equality and Law Reform, one Attorney General and one Director of Public Prosecution. Nuala O’Loan stands for independence and integrity. A chairperson of the ombudsman commission is not a sufficient title to give authority to the position. The position needs to be identified in a person we all trust, like Nuala O’Loan who made herself available when Robert McCartney was murdered in the North.

  8 o’clock

Even from the South, I have faith in Nuala O’Loan. The chairperson of the commission must have an identity, rather than just being the chairperson of the ombudsman commission where the position is just a fudge. From a marketing point of view, the position must be clear and it must be clear what the holder stands for. Will the Minister explain how he will put it into the public arena? The person selected as chairperson will need to be as good a communicator as Nuala O’Loan who has been one of the most outstanding people in the North over the past number of years. Will the Minister clarify the position regarding the chairman and the three-person commission?

[2358]Mr. B. Hayes: Information on Brian Hayes  Zoom on Brian Hayes  As this is my first opportunity to speak tonight, I want to respond to the remarks made by the Minister, Deputy McDowell, about a colleague of mine, Senator Higgins, at the start of this evening’s debate. The charge of abuse of privilege is a very serious one. As every Member of the House is aware, there are means and ways of investigating such a charge if it is made by a Member of the House. The Cathaoirleach, and nobody else, is responsible for adjudicating on the matter. More important, such a charge can be made and allegations can be levelled in line with the procedures of the Committee on Procedure and Privileges.

I did not hear the comments made by Senator Higgins last night, but I will read the transcript as soon as I can. I want to say this, however — Senator Higgins is someone of the highest repute and standing in this country. If it had not been for the work of the Senator and Deputy Howlin, the shocking truth about certain events in County Donegal would never have been known. I want to make it very clear to everyone who might be listening to this debate that Senator Higgins’s conduct during this entire saga is not up for investigation. I think it would be better for the Minister and all concerned to stick to what we have to do this evening, rather than throwing around stuff about a colleague of mine who is not even here tonight to debate the matter.

An Cathaoirleach: Information on Rory Kiely  Zoom on Rory Kiely  Yes. I did not hear what——

Mr. B. Hayes: Information on Brian Hayes  Zoom on Brian Hayes  I would like to inform those who may not be aware of it that the only persons who can raise points of order in the Seanad are the Members of this House.

The fifth group of amendments relates to the proposed establishment of an ombudsman commission. The Government has moved some of the way to addressing the concerns which have been raised by Opposition Members of this House and the other House. It is certain that the establishment of the position of chairperson of the ombudsman commission represents an improvement on the original proposal to establish a three-person commission. I have met the Police Ombudsman for Northern Ireland, Mrs. Nuala O’Loan, and seen at first hand the work she does. I am impressed by the structure that has been put in place in Northern Ireland, not least because it is a totally new office. It has been useful, in terms of getting the message across in Northern Ireland, that complaints levied against members of the PSNI will be taken seriously, that Mrs. O’Loan has been a kind of personification of the new office.

Ms White: Information on Mary M. White  Zoom on Mary M. White  I agree.

Mr. B. Hayes: Information on Brian Hayes  Zoom on Brian Hayes  Like some of my party colleagues, I met Mrs. O’Loan and I saw the operation of her office. I was impressed by the manner in which her inspectorate works. It is clear that [2359]Mrs. O’Loan cannot come to a determination on every single case. She relies on her investigating team of officers, many of whom are from other jurisdictions. I noted a number of people from the London Metropolitan Police, for example. I was impressed by the way in which Mrs. O’Loan’s office can deal expeditiously with all the cases which come before it. I wonder whether the three-person model that has been proposed by the Minister for Justice, Equality and Law Reform will slow the commission’s operation. A great deal of its effectiveness will depend on the personalities of the three people who will be selected to serve on the commission.

I would like to speak about amendment No. 76, which specifically relates to the role of the chairperson and the members of the proposed ombudsman commission. The relationship between them will be unequal. If two members of the commission cannot agree a decision on a case, the chairperson will be able to make the ultimate decision. I refer to a decision on whether to progress a case, for example. There will be an unequal relationship between the two commissioners, even if one of them is the chairperson. I am afraid that such a clash of personalities might not lead to the kind of quick and fair decision-making that we will demand in all cases. It will depend on the personalities of the people who are selected, as I have said. I ask the Government to rethink its position on that matter.

Amendment No. 101 relates to the section of the Bill that gives the proposed ombudsman commission the power to decide whether to progress a case to a full hearing, for example, or to make a decision at all. The members of An Bord Pleanála ultimately decide whether to accept or reject an appeal. Inspectors have frequently issued reports to An Bord Pleanála suggesting a certain course of action, but the members of An Bord Pleanála have decided to do something different. We have details about An Bord Pleanála’s decision-making process because the public is entitled to such information.

Will we know, as we do in the case of An Bord Pleanála, whether the decisions of the three-person commission are in line with the recommendations of the inspectorate in each case? I have asked that question because I am keen to avoid public concern and anxiety if the inspectors, whose report will ultimately land on the commission’s desk, are found to have recommended a certain course of action but the commission has done something entirely different. Such a course of action would be unfair to the complainant. Will it be possible to know in each case whether the inspectors’ report has been adhered to by the commission, which will have the ultimate responsibility for making the decision? It is important that the commission should produce reports on a regular basis stating whether the recommendations of the inspectorate have been adhered to.

[2360]This entire matter would be much easier if just one ombudsman was making a decision. Not only would the public have a much clearer public personification of the role of the ombudsman, but it would just be much easier. There could be personality difficulties involving those who take up this challenge.

Ms White: Information on Mary M. White  Zoom on Mary M. White  Hear, hear.

Mr. B. Hayes: Information on Brian Hayes  Zoom on Brian Hayes  I do not think it is an equal relationship if one is left with two people, one of whom favours one decision and the other of whom favours another decision. The person who is deemed to be the chairperson ultimately makes the decision. It is an unequal relationship. We need to consider this aspect of the matter in further detail.

Dr. M. Hayes: Information on Dr Maurice Hayes  Zoom on Dr Maurice Hayes  I was one of those who argued strongly in favour of a single ombudsman. I continue to prefer such a model. I accept that the Minister has moved a considerable distance in our direction. We are now charged with encouraging him to find an amiable extrovert to fill the office in question. The key argument in favour of a one-person ombudsman model is brand recognition. It is important that the public are aware that a certain person is the police ombudsman. I am glad that the chairperson of the ombudsman commission will be seen to be running the show. The chairperson will be the important person.

Some of the points made by other Members, particularly Senator Brian Hayes, are worthy of consideration. I would be very worried if the entrails of the ombudsman commission were to be constantly exposed to scrutiny. That would be the wrong way of dealing with the matter. In making a decision, the commission will be exercising a quasi-judicial function. It is like asking a judge why he did something that way, rather than this way. Concerns about split decisions, etc., would be removed if we had a one-person ombudsman, but that is another story.

I would be anxious for the ombudsman commission to organise itself in such a way that we will not have to wait for it to hold a monthly meeting before it makes a decision. It should have the capacity to make decisions on the run.

I was glad to hear the Minister’s reference to decentralisation, which could be quite unwise in this case. As an investigative office, the ombudsman commission should be placed as near as possible to the location from which the bulk of one’s business will emanate. If one examines the demographics of this country, one will be given an indication of from where the bulk of the commission’s business will come. I am glad that the Minister is prepared to keep that in mind.

I would like to discuss the reference in the Bill to Oireachtas committees. While we cannot include a specific requirement in the Bill, it is desirable that the Joint Committee on Justice, Equality, Defence and Women’s Rights should examine the operation of the ombudsman com[2361]mission at least once a year. The committee should debate and discuss the issues which are raised in the commission’s report.

I am glad that the Bill makes provision for informal resolution and mediation, which should be encouraged. I am quite worried about one part of the Bill, however. I refer to the question of access to Garda stations. The Minister said that he will designate Garda stations where specific intelligence is held. I agree with his desire and duty to protect the intelligence of the State, but the difficulty is that stations that hold that sort of information are likely to be the stations where people are armed. These are the places where incidents can happen. Almost by definition, these are the places where many problems will arise. On the one hand, there is a need to preserve intelligence and, on the other, there is a need to preserve evidence if there has been a crime. One can see from the Morris tribunal report and other reports how forensically aware people can get rid of evidence of a crime.

It is important that whoever is investigating this matter — perhaps the ombudsman — has speedy access to information. He may be able to arrange that but it appears that the procedure is that one must apply and that if the Garda Commissioner says “No”, one asks the Minister for an adjudication, it comes back and the Garda Commissioner can then ask for it to go before a judge. There must be some way to get round this problem. While it is important to protect security-sensitive information, it is also important to protect evidence. The Minister referred to people not reading files and so on, which is fine. It may be possible to find a modus operandi which would put a stop to that, but still would not stop people going in while the evidence is still hot. This aspect should be reconsidered. It will have to be dealt with by way of protocol and by designation of the people working for the ombudsman, or the ombudsman himself or herself, who would have that kind of access, because these people would need to have security clearance. One could not have everyone tramping around these sensitive places in hobnail boots.

Mr. Justice Morris appears to have established some sort of working relationship with the Garda Commissioner. This is my main concern. Otherwise the matter has moved on, for which I thank the Minister. The key issue is the appointment of an ombudsman who exudes independence and whom people will see both in his or her person and past activity as independent people.

Ms Tuffy: Information on Joanna Tuffy  Zoom on Joanna Tuffy  I want to raise a point of order. I understand that I should have spoken after Senator White.

An Cathaoirleach: Information on Rory Kiely  Zoom on Rory Kiely  I agree, but I did not see the Senator indicating.

Ms Tuffy: Information on Joanna Tuffy  Zoom on Joanna Tuffy  I indicated from the beginning.

[2362]An Cathaoirleach: Information on Rory Kiely  Zoom on Rory Kiely  I hope the Senator will accept that I did not see her.

Mr. B. Hayes: Information on Brian Hayes  Zoom on Brian Hayes  The Senator is correct.

An Cathaoirleach: Information on Rory Kiely  Zoom on Rory Kiely  I know she is correct, but I did not see her. I only call people who indicate they wish to speak. I trust she will accept that.

Ms Tuffy: Information on Joanna Tuffy  Zoom on Joanna Tuffy  I accept that but I felt I should point it out.

I am pleased the Minister has returned because the issue of the ombudsman is one of the fundamental issues in the Bill. I am not happy with the solution the Minister has put forward. While it is a step in the right direction, it is still a fudge. Senator White said one should be able to identify the person. It does not matter because it is still not an ombudsman. One can identify the chairperson of the Garda Síochána Complaints Board as Mr. Gordon A. Holmes but that does not make him an ombudsman. People said that one should appoint the right person. That is not how it should be. It is the office that should exude independence, not the person.

It is still a fudge and I am not happy about it. In bringing forward the new proposal that there will be a chairperson of the ombudsman commission, the Minister is responding to the second Morris tribunal report. One criticism in the report was directed at the Oireachtas. This related to the ombudsman commission. In tabling this amendment, the Minister is responding to that criticism. However, he is not doing what the criticism would require, which is to appoint an ombudsperson. It is still a commission, which is like trying to have it both ways. The amendment has many faults. I do not understand why the Minister will not allow for an ombudsman. If he is prepared to respond to the report of the Morris tribunal, why does he not go the whole way and do what is required, which is to provide for a single person ombudsman?

What is an ombudsman and where does the definition and concept come from? The definition of an ombudsman in the Oxford dictionary is an official, not some officials or a few officials. The definition incorporates an official appointed to investigate individual’s complaints against bad or dishonest administrations, especially that of public authorities. It originated in Sweden where it entailed an official, not some officials, a commission or anything like that. The idea is that it is a legal representative or one individual who acts on behalf of the public. It is not a vague notion that people would like an ombudsman, it is because it is best practice. It is the best type of institution to do the type of job we require. Everyone refers to a good individual. The idea behind the concept of ombudsperson is an individual who has this type of authority. The point is that a single person has a popular authority behind them.

The whole argument for a single person ombudsman was encapsulated in the annual [2363]report of the Garda Síochána Complaints Board when the chairman, Mr. Holmes, argued against a single individual. He said it would lead to a personality-based conflict with the gardaí. This is why we need a single person ombudsman. A single individual would have the popular authority to take on Garda management and have public backing when he or she must deal with the Minister and the Government.

Members said the buck would stop with that individual, which will not happen with a three person commission. The provision is seriously flawed because it is up to the three people how much authority they vest in the chairperson. They may or may not vest authority in that person. We have no idea. The individual concerned could be a great person, but the three persons might not give him or her the authority he or she needs. The decision is being left up to these people.

Another problem is that the three person commission would have to hold a meeting before they could have a vote. Instead of being able to make a decision on their own, and having all that authority vested in them, they must have a three person meeting. The biggest problem is that it is a majority vote. If two people make a different decision from the chairman, where will that leave the ombudsperson and that single individual who exudes all the authority? He or she will be left high and dry with no authority at all. I have examined the Minister’s arguments and the more I examine them the more I believe he is wrong in not appointing a single person ombudsman. I hope the legislation will be reviewed and that we will introduce a single person ombudsman.

The Minister made the point that apart from the Northern Ireland region there are regions in England with bigger populations where there are decentralised police forces or different police authorities and which have commissions. However, there are also countries with much larger populations than the Republic of Ireland who have an office of a single-person ombudsman. Furthermore, as Senator Cummins has said, in other areas we basically put a single person ombudsman in the ombudsman’s role. Ms Emily O’Reilly is a single person Ombudsman for the whole of the Republic of Ireland. The ombudsman in the North of Ireland has 123 staff and a budget of several million pounds. According to Gordon Holmes in the introduction to the annual report she has approximately 15 times the budget of the Garda Síochána Complaints Board. That is extraordinary for an ombudsman representing, as the Minister puts it, merely a region rather than a state.

Senator Cummins made the point that if the ombudsman goes on holiday somebody should be able to take over but every ombudsman goes on holidays. Emily O’Reilly goes on holiday but her staff keep the office running in her absence and she retains authority over the office. If the Minister went on holiday we would not look for a replacement while he was away. Under the pro[2364]posed legislation the chairman can be replaced by another member which can lead to a lack of continuity.

The Minister made a comparison with the Supreme Court but the Supreme Court is not the same. An ombudsman is a representative like a barrister. People do not have three barristers acting for them.

Mr. M. McDowell: Information on Michael McDowell  Zoom on Michael McDowell  Very rarely.

Mr. B. Hayes: Information on Brian Hayes  Zoom on Brian Hayes  That is why they are so expensive.

Ms Tuffy: Information on Joanna Tuffy  Zoom on Joanna Tuffy  The whole point of such a role is that one person acts as one’s advocate. The Garda Síochána Complaints Board has a chairperson but given that we have decided to set up a new institution we should go the whole way and have a single person as ombudsman.

I have been trying to find a copy of Senator Maurice Hayes’s 1995 report. I have made the point before that the Ombudsman Act came into being in the UK in 1998 and was endorsed by the Patten Commission. The Minister seems to suggest that the Patten Commission gave rise to the creation of the ombudsman in the North. It endorsed it but did not actually provide for it.

As Senator Maurice Hayes has said the Bill goes some way to dealing with the issues but it does not go far enough. It is a fudge.

Mr. J. Walsh: Information on Jim Walsh  Zoom on Jim Walsh  I was here last night when Senator Higgins made his contribution. I was taken aback but was unfamiliar with the context in which the allegation was made. When a charge is laid against the most senior policeman in the country, which has now been rebutted by the Minister here, the Senator must back up what he said or come to the House to withdraw the statement. If, in the absence of that, a member of this House is required to make a formal complaint I would be prepared to do that. It was a serious allegation and needs to be clarified. The Minister has clarified his side and was quite right to put it on the record. It is now a matter requiring immediate attention from Senator Higgins.

Mr. B. Hayes: Information on Brian Hayes  Zoom on Brian Hayes  There is a procedure.

Mr. J. Walsh: Information on Jim Walsh  Zoom on Jim Walsh  If my opinion of Senator Higgins is correct he will voluntarily come to the House and withdraw the statement if there is no foundation for it. If it has foundation then it should be clarified expeditiously. In view of the senior position the police officer holds it is a matter that should not be treated lightly.

We have discussed many of the arguments for an individual ombudsman as against the triumvirate proposed in the legislation. While I have listened to the arguments for an individual ombudsman I do not find them compelling. A triumvirate has the advantage of being able to provide cover for absence if one is indisposed. More important, complaints require an adjudication to be made. The analogy of the general [2365]Ombudsman with other single office holders does not hold water. It could equally be argued that the Supreme Court is not a single judge. It comprises a number of judges hearing a case together and coming to a consensus, often on a divided vote.

There is nothing wrong in principle with what is included in the Bill. I welcome as a step in the right direction the change that was made in the Dáil whereby a chairman will be accountable for the functioning of the office. In light of the latest Morris tribunal report I empathise with the points made by Senator Maurice Hayes on access to all parts of the Garda station, which was discussed here on Committee and Report Stages. That is an area that needs to be monitored as this rolls out, to ensure that evidence and information germane to a proper investigation of a complaint is not lost or set aside as happened in instances highlighted in the Morris tribunal. We should err on the side of caution in that regard. If for the security reasons that have been advanced, which appear to be valid, full access is not granted, it is imperative that what might be perceived as a lacuna in the structure of the system does not thwart the effectiveness of an investigation. It should be monitored and, in the light of experience, refined if necessary.

Mr. Coonan: Information on Noel Coonan  Zoom on Noel Coonan  I share the concerns of other speakers on the proposal for a three man ombudsman commission but I am not going to rehash what has been said already. Senator Tuffy caused me to consider what would happen if there was a vote among the three people. Does it mean that if two of the three disagree agree with the chairperson that would be, in effect, a vote of no confidence? Would the chairperson have to resign? This is just one potential complication in this Bill.

The Minister is bringing forward this Bill in haste as a result of the Morris report. I ask the Minister for clarification of the mechanisms he is proposing to build into the Bill with regard to the ombudsman commission and the Garda inspectorate. Will they have retrospective powers? Can they look back on past wrongs that have been committed? We all want to restore confidence in the Garda Síochána. I refer as an example to what is know as the Shergar affair and the sworn inquiry that followed it. A member of the Garda Síochána, garda 17714H, was dismissed, in my view unfairly. Substantial information about that was given to the Minister in January 2004, some 17 months ago. It was given to him by one of his colleagues at my request and I am disappointed that nothing has happened since. Will what he is setting up now deal with situations like that? There was a sworn inquiry, in which a bogus witness was used and perjured evidence given. It is a serious issue. We need to deal with problems like this if we are to restore confidence in the Garda Síochána. Adequate Garda evidence, in a chief superintendent’s report, has been sitting there for some time. This man has lost his job and [2366]all respect. This matter needs to be addressed. The mechanism proposed by the Minister cannot deal with such cases. Another worrying trend is that at least one senior garda was involved in this affair, the Kerry babies case, the Abbeylara shooting and the Donegal scandal. These are serious issues and I would like to know whether the Minister’s proposed mechanism will address similar issues. The garda involved in this case has suffered since 1992 when he was suspended. The request to which I refer has been with the Minister since January 2004 but nothing has happened. Will the Minister do something now?

Dr. Mansergh: Information on Dr Martin Mansergh  Zoom on Dr Martin Mansergh  I would like to address a single issue. Much of the undertone in the debate is that the very effective Northern Ireland model should operate here. That is open to debate but the way the argument to date has completely ignored significant cultural, historical and political differences between the North and the South. A large part of the community in the North did not, and does not, have confidence in or support the police in the administration of justice and so on, which is not the case in this jurisdiction. A further problem in the North is that the junior Minister in this area is assumed to be lined up with or under the thumb of the so-called securocrats and is not seen as impartial. The ombudsman office was set up because of the particular difficulties. Perhaps it will change but no local politician or set of politicians has control, responsibility or accountability for justice and security in the North.

Following weeks and months of intense debate about various issues in the Minister’s brief and, chiefly, events in Donegal, the Government and the Minister are directly responsibly and accountable for overall policy and correcting serious defects that emerge in the administration of justice and policing in the State. The Northern system does not have anybody comparable to the Minister. I refer to a comparison, which is not valid. Do we want the Minister and the Government to be accountable for policing generally, as opposed to individual decisions, and to have responsibility for correcting serious scandals that emerge in particular areas? People are not comparing like with like. Nobody has stated a desire to seriously diminish the responsibility of the Minister for the state of policing and the improvement thereof in our system. The balance is different because there is not a political vacuum here similar to Northern Ireland. While recent events have shaken confidence in the way the Garda operated in Donegal, nonetheless, overall there is a higher level of confidence here in the police than in the North.

I agree with my party spokesperson, Senator Jim Walsh, regarding another comparison. Is it valid to compare the ombudsman function relating to police to the regular Ombudsman or Information Commissioner? Without diminishing the seriousness of the matters with which the Ombudsman, Ms O’Reilly, deals, the police ombudsman will have serious and critical issues [2367]to address. I prefer to examine substance over presentation because substance is more important. The Special Criminal Court comprises three judges. We have had single judge tribunals but I do not think that they have always operated effectively. There is a case for somebody in the position of ombudsman to have colleagues with whom he or she can discuss issues.

Reference was made to the question of people voting and non-voting. In the vast majority of cases, issues are thrashed out for as long as it takes and a collegial decision is taken as is the case with Government. The notion of open differences undermining confidence in the office has no bearing on reality. Where critical decisions must be taken, which may affect public confidence in the Garda in a particular area or generally, the maximum consultation and considered decision making will take place. I would prefer that the ombudsman should not be a lonely decision maker who must make decisions on his or her own. Two other people should be appointed with whom he or she can consult.

Ms White: Information on Mary M. White  Zoom on Mary M. White  What about the Attorney General?

Dr. Mansergh: Information on Dr Martin Mansergh  Zoom on Dr Martin Mansergh  That is generally the practice in the judicial process. Quasi-judicial decisions are made by at least three persons rather than one.

Mr. M. McDowell: Information on Michael McDowell  Zoom on Michael McDowell  I do not wish to criticise the model adopted in Northern Ireland but, for instance, the equivalent body for the Royal Canadian Mounted Police comprises three persons while in Britain a significant number of members make up its equivalent commission. This issue is one of practicality. The House should consider a few of the features of the legislation, one of which is that the ombudsman commission can delegate its functions to any of its members. If, for instance, an investigation takes up significant time and resources, one member of the commission can have that function delegated to him or her while the others deal with the day-to-day correspondence with the office. If a member is on holidays or is hospitalised, continuity will be provided. Somebody will be available that afternoon to decide whether a specific police station should be searched or whether a person should be arrested. He or she will not operate under a general mandate of the ombudsman.

One can argue the toss on this but a strong argument has been made, which was repeated by Senator Tuffy, that an identifiable person should be appointed as a figurehead of the service but I regret that the service will have a substantial volume of business. It will not be one in which the individual will have a hands-on approach to every matter. With a 14,000 strong force — which will soon be in place — the ombudsman commission will have a significant volume of business with which to deal. There is nothing to be lost and everything to be gained by providing a flexible model of three people capable of exercising the [2368]role of ombudsman and delegating to themselves, or in certain other respects, to their officers any of their functions.

One can draw analogies, as Senator Mansergh said, between the Special Criminal Court and the Diplock courts. Are we happier that there are three people in the former rather than one? Most people would be, although I note some members of Sinn Féin said recently they are happier with the Diplock courts than with the Special Criminal Court. One takes one’s choice.

In the Court of Criminal Appeal, for instance, to take a judicial model, there are three people but only one judgment is pronounced. Frequently the media reports it as a judgment of the presiding judge because he or she delivers the judgment. That is not so — it is a three-person decision in which the presiding judge may be in a minority but if so is obliged to deliver the judgment without disclosing that fact. That is how that system works.

There are three Revenue Commissioners and three Commissioners of Public Works, and one can talk about commissions until one is blue in the face. Sometimes one person is made a commissioner such as the Information Commissioner, sometimes three people are made commissioners. There is no golden rule that states only one person can function in this way. For example, if we had a significant volume of business for the Ombudsman and the Information Commissioner, I could well imagine those jobs being carried out by a multi-person commission.

This is not a point of high principle. There is much argumentation on each side. Are the Canadians wrong to have a three-person body for the Royal Canadian Mounted Police? Is that inferior to what has happened in Northern Ireland?

Ms White: Information on Mary M. White  Zoom on Mary M. White  It could well be.

Mr. M. McDowell: Information on Michael McDowell  Zoom on Michael McDowell  It could well be but maybe not. If three people had been selected in Northern Ireland and I said I wanted one I would have been beaten around these Houses for doing the opposite of what I am now doing.

I have listened carefully to the debate and have substantially amended the proposal. There is an argument for involving more than one person. I also believe there is an argument for having a person who is visibly identified with the process. The compromise we have is a good one on that front.

The question was asked whether this is to be a retrospective body with power to investigate the disappearance of Shergar and so on. The ombudsman commission, generally speaking, will not go back over history. The bulk of complaints will be contemporary, rather than retrospective and there is a strict time limit which can be extended in certain circumstances provided for in the legislation. There are provisions in section 102(4) and 102(5) which would, in certain circumstances, allow investigations that are not time lim[2369]ited and, in principle, would allow retrospective investigations.

I need a police force functioning to the highest possible standards. I am somewhat mystified at times by the amount of exhumation of grievances in Northern Ireland going back over ten, 15 or 20 years. This is a one-sided process because it is claimed almost insatiably that some issues should be retrospectively investigated to find out whether there was collusion with policemen.

The process agreed in Weston Park exists and I am not trying to go behind it. It is ironic, however, to put it mildly, that nobody will ever investigate the incident in which ten or 11 Protestant workers were removed from a bus and machine-gunned at Kingsmills. No one will ever ask who did that. No one will ever hold an inquiry and demand the truth.

Ms White: Information on Mary M. White  Zoom on Mary M. White  Eddie Fullerton.

Mr. M. McDowell: Information on Michael McDowell  Zoom on Michael McDowell  The Eddie Fullerton issue is a live one.

Ms White: Information on Mary M. White  Zoom on Mary M. White  Is the Minister dealing with that?

Mr. M. McDowell: Information on Michael McDowell  Zoom on Michael McDowell  I make the point to Senator White in particular, that there are many things which apparently it would be rude and against the thrust of the peace process even to mention, which are never to be investigated in Northern Ireland.

Take the case of the poor girl in Derry who was shot and whose parents were told by the Provisional IRA that it was the British Army who killed her, knowing that was a lie. It maintained that lie for decades. Nobody will ever ask which among the Provisional IRA commanders in Derry and which elected representatives there were party to that gross deception. They will walk clean away from it, they hope, by simply saying now, many years later, they were lying through their teeth all the time. We have to put up with that kind of thing.

I am not going to embed a process of retrospection into this ombudsman process. It is not the function of this process to act as a roving tribunal of inquiry into every cause célèbre of the Garda Síochána over the past 25 years. I could do that, and were I to match the amount of retrospection in which Nuala O’Loan engages, and if the Garda Síochána were to engage in the kind of retrospective operation in which Sir Hugh Orde is now engaged, I could pour massive resources into numerous issues.

Mr. Cummins: Information on Maurice Cummins  Zoom on Maurice Cummins  How far back will the commission go?

Mr. B. Hayes: Information on Brian Hayes  Zoom on Brian Hayes  Six months.

Mr. M. McDowell: Information on Michael McDowell  Zoom on Michael McDowell  The question we must ask in those circumstances is whether that would be an appropriate use of Garda resources. There are people whose homes are under attack today and will be tomorrow, people who want to walk the [2370]streets in safety today and plots to commit crime which require the activities and intelligence of skilled detectives to be applied today in surveillance. Am I to draw all these forces into various offices and ask them to engage in historical research? The people would be of the general view that, with the exception of matters such as the subject of the Morris tribunal, this should be a contemporaneous process.

The two exceptions provided for in section 102 should be used judiciously, if at all. Otherwise, there will be an endless torrent of people saying they were assaulted 30 years ago in a Garda station, or whatever. We cannot have that and have a proper——

Mr. Coonan: Information on Noel Coonan  Zoom on Noel Coonan  What about the wrong done to the individual garda?

Mr. M. McDowell: Information on Michael McDowell  Zoom on Michael McDowell  I cannot comment on an individual case in this House. I do not want to be deflected into doing that. There are many individual cases, many of which are current and known but I cannot in the course of this debate comment on their merits or demerits because that is not what we are doing here.

Mr. Coonan: Information on Noel Coonan  Zoom on Noel Coonan  There are still senior members of the Garda management there.

Ms White: Information on Mary M. White  Zoom on Mary M. White  What forum is there for asking about dead cases?

Mr. M. McDowell: Information on Michael McDowell  Zoom on Michael McDowell  There are many fora for doing so but the purpose of this ombudsman commission is to deal with contemporary complaints in general and only in exceptional cases will it be employed on a retrospective basis. It is open to the ombudsman commission, if it appears to it to be desirable in the public interest to do so, without receiving a complaint, to investigate any matter which appears to indicate that a member of the Garda Síochána may have committed an offence or behaved in a manner which would justify disciplinary proceedings.

There is not on the face of section 102(4) a time limit of any kind. The commission is an independent body. If it comes across a matter outside its time limits it can examine and decide on the matter but that is not something in which I would lightly engage. Section 102(5) states:

Mr. Cummins: Information on Maurice Cummins  Zoom on Maurice Cummins  The Minister is dealing with section 102 as passed by the Dáil. The documents before us are those passed by the Seanad, to which section 102 does not refer.

[2371]Mr. M. McDowell: Information on Michael McDowell  Zoom on Michael McDowell  I am sorry.

Mr. B. Hayes: Information on Brian Hayes  Zoom on Brian Hayes  We can only refer to the amendments as passed by the Seanad.

Mr. J. Walsh: Information on Jim Walsh  Zoom on Jim Walsh  That is correct.

Mr. M. McDowell: Information on Michael McDowell  Zoom on Michael McDowell  It is section 94 in the Senators’ documents but this is not of my doing. The procedure of this House is not imposed by me. Senator Tuffy mentioned resources, which will be a significant issue. The present scale of the Garda Síochána Complaints Board would not be justifiable as an indicator of what will happen when the ombudsman commission is put in place.

The complaints board has a budget of €1.2 million whereas the equivalent ombudsman in Northern Ireland has a budget of £6.5 million sterling, €9 million. The multiplier here is seven or eight, not 15 as suggested by Senator Tuffy but whichever figure is used, there is a remarkable disparity between them. I ask the House to remember that the number of staff in Northern Ireland grew over a formative period on a stepped basis from 40 or 50 to its present number. I do not wish to create an expectation that there will be numerous people immediately sitting at desks waiting for telephones to ring, as that would not be practical. I must ensure the implementation process begins with a solid commitment of resources and an understanding that these resources will be increased so as to adequately discharge the functions of the ombudsman commission over a number of years. One cannot just click one’s fingers to produce an agency operating at full capacity on day one. It will take a succession of years to reach an acceptable plateau. Senators Maurice Hayes and Jim Walsh mentioned the designation of Garda stations. This will be addressed in group 12 so I will reserve my fire.

An Leas-Chathaoirleach: Information on Paddy Burke  Zoom on Paddy Burke  We move to group 5 on Garda accountability and the Morris report, the subject matter of amendments Nos. 52 to 55, inclusive.

Mr. M. McDowell: Information on Michael McDowell  Zoom on Michael McDowell  The four amendments in this group comprise a core set of provisions in the Bill. As I said during the Dáil debate on the Morris reports recently, the findings of the tribunal are profoundly disturbing and shocking at times and call for a strong, effective response from the Government. Notwithstanding that a relatively small number of gardaí were involved in what Mr. Justice Morris uncovered in County Donegal, there is no escaping the inevitable conclusion that the management systems and culture currently in place within an Garda Síochána are wholly outdated and inadequate. They have failed to discern the truth in so far as the events in County Donegal are concerned and there is no escaping the reality that there is a compelling case for a radical and wide-ranging reform of the management of an Garda Síochána. I am determined [2372]to see this objective achieved through the enactment of the Bill and the speedy implementation of its provisions, especially so in the areas we are now discussing.

I referred to the establishment of a special implementation group under the chairmanship of Senator Maurice Hayes. It will oversee all measures that are required by way of administrative and other actions to put the provisions of the Bill into effect as quickly as possible after it passes through the legislative process. My nightmare is that, having produced this Bill, nothing would then happen or a slow administrative process would take effect, in which I would be constantly reminded by well-meaning officials that there is much work to be done. The Department and its Secretary General were very anxious to put in place a real incentive to ensure the Bill comes into operation as quickly as possible. I thank Senator Maurice Hayes for agreeing to be one of our auditors and to hold the whip to us.

The amendments before the House in this grouping represent a full and head-on response to some of the recommendations contained in the first and second Morris reports. In paragraph 9.36 of the second Morris report, the tribunal reiterates the entire “Duty to Account” section on recommendations in chapter 13 of its first report. The tribunal noted that the Garda Síochána discipline regulations do not make it a breach of discipline to fail to account for duties. It also noted that a statutory compulsion that results in an admission of criminal liability is ruled out as an involuntary statement in any subsequent proceedings. The tribunal observed that there can be no good reason a member of an Garda Síochána should not account for his or her duties. The tribunal took the view that it is of fundamental importance that all members of an Garda Síochána of whatever rank must be obliged to immediately account truthfully for their duties and that a failure to answer or an answer that is less than truthful should be regarded as a major breach of discipline inviting dismissal. This is a point with which I agree completely.

The tribunal’s recommendation in this respect was the creation of a special offence of failure to account for duty, that it should be a dismissal offence and that a failure to account truthfully and immediately in respect of duties should result in immediate suspension. As I said in the Dáil, I agree with the clear view of the tribunal that gardaí should be required to account for their actions on duty without delay, procrastination or the need for applications to court. The tribunal made it clear that the existing Garda disciplinary mechanisms were totally inadequate to the task of establishing straightforward facts concerning the whereabouts and actions of individual members of the force. It is essential, therefore, that there should be a clear duty on every garda to account without delay.

It was always my intention to provide for such a duty in the disciplinary regulations, which would be made under the Bill and for which the [2373]Bill already provides. Having reflected further on the matter and having taken into consideration the strong language used by Mr. Justice Morris in his report, I have decided to place such a duty on an express statutory footing by way of inclusion in the Bill itself through an amendment introduced on Report Stage. I make no apologies for the lateness of the hour, so to speak. It was too important a matter to leave for another day and must be dealt with in this Bill now. I consulted in detail with the Attorney General and his staff on the new provision and I am sure it is as tight as we can make it, having proper regard to constitutional and European convention on human rights considerations. I agree with the tribunal that this duty, vigorously implemented, should obviate the need for more involved investigations in many cases and should greatly assist the internal management of an Garda Síochána.

The purpose of the amendment is to give direct and immediate effect to the recommendations of the tribunal concerning the Garda duty to account. The new provision means that every member of the force except the Commissioner for obvious reasons, when required to do so by a member of higher rank, must account for his or her action or inaction while on duty. The provision cannot be applied to the Garda Commissioner as there is no higher officer within the force to whom the Commissioner can be made to account. However, I am still alert to the tribunal’s comments about the Department of Justice, Equality and Law Reform in paragraph 13.96 of its first report, where it states that in line with its statutory oversight role in respect of an Garda Síochána, the Department must be empowered by knowledge. The report also indicated that the Department had become isolated from the force.

Senators might recall that my immediate response to this point was to introduce new provisions in the Bill for the establishment of an independent Garda inspectorate, the main function of which is to ensure the Minister and the Department will have objective information on matters relevant to the functioning of the force in line with the aims of this Bill to make better provisions in respect of an Garda Síochána. This was done during the passage of the Bill through the Seanad in 2004. Having reflected on the matter, I decided to go further on the tribunal’s recommendation in paragraph 13.96 by extending the duty to account requirements proposed in respect of an Garda Síochána to the Garda Commissioner also. As can be seen in the amendment I introduced on Report Stage, this will be achieved by way of the Garda Commissioner being required to account fully to the Government through the Secretary General of the Department of Justice, Equality and Law Reform for any aspect of his or her functions.

I do not wish to examine the matter too deeply in this House. There has been a good deal of mischief-making about this new provision. Considerable time was devoted to it in the other House and the allegation was made that the amendment [2374]would enable me as Minister to see any Garda file I wished, on any occasion, for good purpose or bad. I have made my position clear on this issue and do not propose to go into the matter again unless I must. I stand over this scrupulously fair and reasonable provision which is designed for the purposes of a sovereign Government and its duty, through the Minister for Justice, Equality and Law Reform, to account fully to the Oireachtas for the Garda Síochána.

I ask Members to imagine the scandal if the Minister of the day were to be challenged in the Dáil by an Opposition spokesperson or Government backbencher claiming that a file indicating significant malpractice or whatever on the part of a particular person or body was in the possession of the Garda Síochána. Imagine how wrong it would be if the Minister was obliged to admit to the House that he or she had inquired about the matter but was refused access to the files. How could this possibly be right? How can there be documents to which the Government, operating through its most senior public servant in the area of security, could not have access if such was required for the purpose of accountability?

Some will argue that I might use this power to discover the status of a Garda investigation into a cousin of mine, for example. This would be a clear abuse. To do so, however, I would first have to persuade the Secretary General of my Department to collaborate with such an abuse. Second, both he and I would immediately be exposed to the prospect of being swept out of office if the Garda Commissioner chose to write and publish a letter to the Taoiseach or to lift a telephone to a journalist. We would pay the ultimate price for abusing this power.

The alternative view in this matter is that the Government should not, in the last analysis, be master in its own house and have the power, through a responsible public servant, to access Garda files when such access is required. If such access is not possible then the Government is not in charge and there is no effective civilian oversight of the police force. The Garda cannot ultimately have secrets from the democratically elected Government of an independent Irish State. There cannot be a power to refuse information of this type.

The deletion of the original provision in section 40 was consequent on the insertion of the new accountability provisions in section 5. I reintroduced the provisions in section 40 in modified form in the new section 37. In its original form, section 40 required the Garda Commissioner to keep the Minister fully informed about significant developments in policing and security matters. This implemented a recommendation in the report on performance and accountability.

This section also contained a statutory basis for a submission of a report by the Commissioner on a policing or security matter as might be required by the Minister for Justice, Equality and Law Reform. In line with other changes relating to accountability, however, I am proposing some [2375]additions to the original section 40 to strengthen it significantly in the light of the second report of the Morris tribunal.

These amendments provide a power which replaces a broadly analogous narrower power which exists, somewhat obscurely, under the Dublin Police Act 1924 for the Minister to appoint a person to carry out a special inquiry into any aspects of Garda administration, practice or procedure which is giving rise to public concern. There may be circumstances, notwithstanding the detailed powers and functions of the ombudsman commission and the new inspectorate and the powers of the Minister for Justice, Equality and Law Reform to request these bodies to act where a specific issue comes within their particular remits, where an issue could require a speedy and relatively informal inquiry by an expert to establish facts with regard to any aspect of the administration, practice or procedure of the Garda Síochána. That is the purpose behind the provisions set out in amendment No. 55.

Mr. Cummins: Information on Maurice Cummins  Zoom on Maurice Cummins  There is no doubt that we need accountability within all ranks of the Garda. The second report of the Morris tribunal unearthed a murky side in regard to the activities of some members of the force, a side most of us did not perhaps believe existed prior to this. The report made us aware of instances of gross incompetence, corruption, personal vendettas and the destruction of lives and livelihoods. It also demonstrated the great disrespect shown to the late Richie Barron and the search for the truth surrounding his untimely and undignified death.

We had the unedifying sight of senior gardaí who may have believed they were above the law and who, by their activities, eroded the pride and the confidence the public had in the force. We must have accountability if we are to address the recommendations of Mr. Justice Morris. I am concerned, however, that due process and natural justice must be seen to apply at all times. Amendment No. 52 provides for a new section 35 which stipulates that where a member of the Garda fails to account for any act done or omission made while on duty, he or she may be informed by a member of higher rank that such failure may lead to dismissal.

I agree there is a duty to account for one’s actions but I ask whether this is another charter for bullying within the force. If, for instance, a higher ranking garda has a grudge against a more junior member of the force, could the former resort to use of this section to remove his or her colleague? Are there any safeguards in place to prevent such an eventuality and does the Minister believe any such safeguards are necessary?

Industrial relations difficulties may accrue as a result of this section and the Minister has mentioned that he is getting advice from the Attorney General in this regard. However, a question remains in regard to constitutionality in that gardaí may lose their livelihood in a summary [2376]fashion under the provisions of this section. I would never condone wrongdoing but due process and fairness must apply.

Amendment No. 54 relates to the duties of the Garda Commissioner to provide information to the Minister. Given the obvious concerns that have been raised at the Morris tribunal and the revelations that the Garda authorities did not hand over files when requested to do so by the Attorney General, will the Minister confirm that he will maintain authority over the Garda Síochána? He has given some assurances in this regard but I ask him to clarify them. Will he guarantee to the House that where the Department of Justice, Equality and Lw Reform requires files or records — for example, in cases where it is the contracting authority — that this information will be provided and that such provision will be retrospective?

I ask this in view of the concerns relating to the contract for the supply of video interviewing recording systems. Will the Minister instruct the Garda authorities to provide his Department with all the files and records the Garda authorities hold in regard to the awarding of this contract, including all the information and correspondence in regard to the valuation of the three systems that were offered? EU legislation states that information relating to the selection of successful tenders should be provided within 15 days. It is now more than four years since the Department of Justice, Equality and Law Reform sough this information and it has been thwarted at every step. Will this legislation allow the Minister to acquire these documents? If not, what is the reason for this?

The Minister observed that it would be a disgrace if he could not access documents in the possession of the Garda. Will this be the case in regard to this disgraceful matter, which has been raised at meetings of the Committee of Public Accounts? I ask the Minister to reaffirm his earlier statement in regard to this. It is a pertinent point that the Minister for Justice, Equality and Law Reform, as the leading law enforcer for the State, should have access to the documents he or she requires from the Garda.

Mr. J. Walsh: Information on Jim Walsh  Zoom on Jim Walsh  I broadly support the thrust of this new chapter.

Under section 35(1), a garda must account for any act done or omission made while on duty when directed to do so by an officer of higher rank. While I understand this may not cover informers, I am concerned because the Morris report addressed that area at considerable length. I am not sure that I agree with all the conclusions it made. In general, where gardaí are involved with informers, they will require a lot of discretion and confidentiality. In terms of the fight against paramilitaries and organised crime, an informer, who may face the sanction of death upon discovery, would be slow to co-operate unless absolute trust existed within the system. That would entail confidentiality. I cannot con[2377]ceive of a situation where an informer would be happy to co-operate with a garda if he or she felt that anybody up the line could access the information or that his or her identity could be disclosed. We need to be careful that, because of the abuse in Donegal, we do not go the other way by creating problems in getting information and in policing effectively, which this is ultimately about. The Minister might state whether actions taken on foot of information from an informer might have implications in terms of this section.

With regard to the Secretary General securing documents, that is a far-reaching provision and I presume it will be reviewed in light of experience. I support it with caveats because, having sat through the hearings on the Dublin-Monaghan bombings, I did not accept the proposition put forward by the then Ministers and senior Department officials that the Department was so removed from what was happening in the Garda that it could not determine whether the investigation was continuing. That is ludicrous. I welcome the change but note that this will facilitate any future hearings by the Joint Committee on Justice, Equality, Defence and Women’s Rights or any other Oireachtas committee, in that the Department will not be able to hide behind such a situation or claim that information is not in its possession. I see implications in this for the Department. Positive and negative elements exist. It will need to be examined in light of experience.

I have a further question regarding section 42(7) which states: “Any information, document or thing provided by a member of the Garda Síochána in accordance with a requirement under subsection (4) is not admissible in any criminal proceedings against the member and this shall be explained to the member in ordinary language by the appointed person”. I wonder whether this may compromise any subsequent prosecution. If somebody committed a criminal offence and the document could otherwise be secured through the investigation, I would hate to think that this provision could thwart the effective prosecution of the case. Somebody could escape the full rigours of the law when he or she should have been brought to account by the courts. I have concerns on this and the Minister might comment.

Ms Tuffy: Information on Joanna Tuffy  Zoom on Joanna Tuffy  I appreciate the Minister’s reasons for bringing forward the new section 35. It refers to one of the recommendations of the Morris report. However, I agree with the concerns expressed by Senators. We will have to examine how it works. We should have had more time to consider these amendments. While I am aware that much debate was held on this matter, the House could have sat longer and held further discussions with Garda representative associations, among others, before passing this legislation. We should review this in the future.

I have concerns about the way in which a member of the Garda Síochána is affected by this provision in terms of rights to appeal. I did not [2378]have a chance to review the legislation but I presume that an appeal may be made by means of disciplinary proceedings. Many issues arise in this area. While I see its necessity and that rights are impacted upon in terms of the Garda, we should in the future determine whether it needs to be amended. The Labour Party proposal for a commission on policing was a good idea for that reason. Many issues could be investigated and vested interests consulted on policing in light of the latest Morris report. I do not agree that this would lead to delays. During the debate on the motion brought by the Labour Party last week, I said that the Patten commission in the North did not delay reforms such as the Ombudsman Act 1998. That was enacted before the Patten commission reported. Reforms could be made now and a commission established which could do more. We should consider an independent Garda authority.

The logic of the Minister’s argument in terms of section 36 is that he already has access. If that is the case, why do we need this provision? If not, what gap is it filling in the legislation as it stands? The Minister said he should have the access as described in the provision. If that is true, surely we already have it in our legislation. The Minister might comment on that point.

New section 38 concerns general issues of accountability in terms of inquiries by the Minister into aspects of administration practice or procedure. One reason for this is that he would want to overview policing strategy and administration. It does not necessarily mean that he would hold an inquiry on the basis of wrongdoing. It may be held simply to investigate these issues in general terms. I repeat that an independent policing authority should be established.

The Minister is attempting to imply that this would remove matters from his remit as well as from that of the Oireachtas. That is not the case because, in the case of police authorities in other countries, the relevant Minister retains overall authority. I remember a dispute with an authority in the UK over the dismissal of a senior official, where the Minister there had a say in the matter. The establishment of a policing authority does not remove all decision-making powers from the Minister. The Minister would possess an overseeing role in terms of our police force.

The Minister remarked, in the context of the Northern Ireland authority, that we want these practices because they exist in Northern Ireland. That is not true. We want them because Northern Ireland represents a positive model. It is not that Northern Ireland was a society which required these practices or, as the Minister would imply, that it is unique. Northern Ireland followed the practice common to other policing regions of the UK since the introduction of the 1964 police Act, which established the policing authorities for the various police forces there. Problems in terms of accountability were identified by the Morris tribunal. The way to address the homogenous nature of the Garda Síochána in an open and [2379]accountable way is to have an independent police authority which holds public meetings and issues reports. The Minister would still have an overall role in terms of the police force.

I do not understand why the Minister is so strongly against the idea of an independent policing authority. He is clinging to his role in policing. That is incorrect. He needs to be brave, let go of his role and radically reform the structures in our police force. The independent police authority is the way to do that. A policing commission could initially examine all of the different possibilities and models of how to set up a policing authority and what it would do.

I stated last week that neither Ireland nor Northern Ireland are unique in having a crisis in policing. A lack of confidence and need for reform similar to that in Northern Ireland has occurred in police forces all over the world. The response of Northern Ireland in bringing in new structures shows its maturity. That we are not willing to go as far shows we are not as mature as a society.

Dr. M. Hayes: Information on Dr Maurice Hayes  Zoom on Dr Maurice Hayes  I will not bore the Minister as he knows my views on the police authority and I know his. It is not quite a draw as the Minister won. This series of amendments is of major importance and goes to the heart of the problem of policing a democratic society. It is important that the Minister has introduced them. I have some comments to make.

I was astounded when reading the Morris tribunal report to find that people could claim they did not have a responsibility to account to an employer for what they did on an employer’s time as I would have thought that was implicit in any contract of employment. It is important the Minister has dealt with that.

I see the rest of this as a re-balancing of the relationships. Most police services and societies have the following problem. It would be entirely improper if any politician interfered in day to day policing or decide who should be arrested or charged, as one cannot have a spy in the camp inhibiting or second guessing the people doing that job. However, one cannot imagine that anybody is independent in the way that some chief constables I have known suggest. They describe decisions as operational because they have operational independence. I argue this point, as everything can be described as operational except saying “hello” to the Minister. That is why we spent so much time trying to hammer out that point in the Patten report. We clearly came to the conclusion that people must be accountable within frameworks and against plans and protocols. The Minister has gone a long way down that road.

I am glad the Minister introduced the possibility of having an inquiry by one person for situations where less than a full-blown inquiry is required. That might be a useful buffer at times between the politician and the documents. I am concerned about this but I accept the Minister’s [2380]reassurances and am happy with similar reassurances from the Department. I am sure the Minister must develop protocols and directives on this and it might be better to make it clear that documents are not requested on a whim. Such requests are as a consequence of a serious concern of managerial deficiency in the police force, in response to a matter of public concern or to a question asked in the Oireachtas that the Minister account for matters.

Senator Walsh’s concerns on informants can be dealt with in the same way. That a proper methodology and protocol for dealing with informants is also necessary comes from the Morris report. Its existence is crucial as it is a highly dangerous and difficult area. There is no question of a person of garda rank having to account to just anybody. Presumably it is spelled out that certain people are entitled to ask that particular question and not other questions. This tightens up the situation considerably. It is necessary in this day and age to assert there is no instrument, body or agency of the State which has untrammelled freedom to do what it wants on its time without being accountable through the Minister to the Oireachtas.

Mr. B. Hayes: Information on Brian Hayes  Zoom on Brian Hayes  Without detaining the House for too long I wish to refer to a number of points. Amendment No. 52 is crucial. I also was not aware that members of the Garda Síochána did not have to account for their actions. It shocked most members of the public when this came out from the Morris tribunal report. Senator Maurice Hayes is also right to state the entire objective of this is to challenge independent fiefdoms that might exist within some parts of the force and to ensure that an essential ingredient must be that the duty of members of the Garda Síochána includes accounting for themselves.

I have a question on the use of the phrase “higher ranks”. The new section 35, at subsection (1), states: “A member of the Garda Síochána shall, when directed to do so by a member of a higher rank, account for any act done or omission made by the member while on duty”. To take the Donegal situation, if I were an ordinary member of the force returning to the station late at night, how realistic is it that a sergeant or inspector in a local station will ask me, an officer he meets every day, to account for my whereabouts and actions during the previous three or four hours? The collegiality of the force is as it is.

Would it be more sensible to specify a higher rank of superintendent or deputy superintendent from another district? Realistically, people will not pose the difficult questions within a station because people who work together every day feel a personal commitment to each other. I ask the Minister to outline his rationale behind the phraseology of “higher rank”. Why did he not specify a higher rank from another district as a means of ensuring that this information would be obtained when someone was asked to account for their activities?

[2381]With regard to amendment No. 53, it is shocking that a free Government of this State would regularly not get information on highly sensitive matters of public concern from the senior office-holder in the force. I read the comments the Minister made in the other House last Friday week when he informed the public of the time lag and delay before his Department received a full report from the Garda Síochána. It is not good enough in any democracy that a political master, responsible to the House for the actions of the force in a general policy sense, must prise information from the force. I accept the Minister’s best motives with regard to amendment No. 53 but it is shocking that it needs to be put into legislation in the first place.

I have one question on amendment No. 54 on the duty of the Garda Commissioner to provide information to the Minister. What happens if a complaint is made either to the ombudsman commission or the inspectorate whereby information is flowing from the Garda Síochána to both of those bodies and the Minister also wants that information? Would the Minister be precluded from obtaining that information already sent to the ombudsman commission or inspectorate? I pose that question because it appears that situation would be conflictual if it were to emerge.

On amendment No. 55, I welcome that the Minister is updating what I understand is a part in the 1922 Dublin Metropolitan Police Act. There is a substantial power in this new section, which goes back to something Senator Coonan mentioned earlier. As I understand it, previous grievances can now be examined by this person the Minister can appoint. That is important because there are substantial grievances persons may want inquired into in a way that is outlined in amendment No. 55. I ask the Minister to clarify that. For example, subsection (9) of the new section states that the section applies even if the matter considered by the Minister to be of public concern arose before the passing of this Act. It is clear that it is the Minister’s decision. It is clear also that questions could be put to him in the other House as to the reason he has or has not decided to ask this special investigator, as it were, to investigate that cause of concern. That is important because we can at least say to the public at large that even if the ombudsman commission cannot examine every issue retrospectively, and I understand what the Minister is trying to do here, there is a mechanism in place to examine past grievances and some political control as to how we can do that. That is important.

Dr. Mansergh: Information on Dr Martin Mansergh  Zoom on Dr Martin Mansergh  Clearly these are extremely important sections. The situation we have in a democratic society is of vital importance. Do we have, as the Queen is alleged to have said across the water, powers at work in this country of which we know nothing, in other words, the security authorities operate, to a degree, independently of any control? I have certainly had the feeling in [2382]regard to some of the matters and security controversies that have been at issue in Northern Ireland and in Anglo-Irish relations, and perhaps this is naivety on my part, that the Government across the water does not have a full handle on all aspects to do with security.

We are talking about our State here, however, and it is very important that if necessary the Minister and the Government — obviously one is only talking about exceptionally grave situations of one kind or another — are capable of getting all the information in the possession of gardaí and that there are not reserved areas, so to speak, into which even the Minister or any other authorised officer like the Attorney General, are not permitted to inquire. That is a very important principle.

Obviously one might be concerned about whether this power could be open to abuse but I would like to think that we had developed to a stage in this country where abuse, of which the Minister gave one theoretical example in his opening statement, would be so fraught with risk that people would not entertain it. One is talking about two people — the Minister and the Secretary General of the Department. It is very important that such a power not be delegated to some middle ranking or junior officer in the Department of Justice, Equality and Law Reform. We all understand that in most instances the Garda Síochána must have a large degree of discretion and operational freedom and not have any kind of second guessing mechanism but I do not believe that is proposed.

The one comment I would like to make is about the question of a Garda authority, in other words, the suggestion that the powers proposed to be given to the Minister effectively would be under a Garda authority. I am not convinced of that. I have had opportunities, as a member of the British-Irish Interparliamentary Body, to meet the policing authority in Northern Ireland and in many respects it is like a board of a company where all the directors are non-executive. I am not satisfied that they are an adequate substitute. I am not criticising the situation in Northern Ireland. There is a particular history, political situation and culture there. It is a perfectly valid choice and I know they operate with them in England but the Minister and the Government have a democratic legitimacy way beyond that of any appointed authority of the great and the good. Therefore, I support what is before us but it is of major importance that it be clearly stated because there has been some degree of ambiguity about this. Going back to my time as a special adviser, there would have been some doubt in my mind as to how far the power of the Minister for Justice extended. Could such Ministers in principle, if they had a valid reason to do it, know everything that they needed to know? I was not always convinced that was the case. We have had instances where that was not the case vis-à-vis the Minister of the day and the Attorney General. I support these sections.

[2383]Mr. P. Burke: Information on Paddy Burke  Zoom on Paddy Burke  I welcome the Bill. Under section 14, the Garda Commissioner can appoint a number of members to the rank of sergeant and inspector as he sees fit. Under this ground-breaking legislation, there will not be any changes in the current Garda ranks. There is a considerable number of retired members of the force of various ranks who are on different pensions but in many semi-State and State bodies — Telecom Éireann a number of years ago being a prime example — when the ranks are changed the people concerned lose out on their pensions. I would like clarification regarding the ranks within the Garda Síochána and an assurance from the Minister that retired members will not lose out on their pensions, that their pensions will grow at the same level as the rank at which they retired and that there will not be any loss to them in that regard.

Mr. M. McDowell: Information on Michael McDowell  Zoom on Michael McDowell  On the last point, there is no intention to change the pyramid of ranks in the Garda Síochána Bill. The current ranks are Commissioner, Deputy Commissioners, Assistant Commissioners, chief superintendents, superintendents, inspectors, sergeants and gardaí, and there will be reserve gardaí as well if that comes into operation. Those are the only ranks which exist, just in case anybody is of the view that I am proposing to bring in some new variety of commandants, majors and so on for pension purposes. I assure the Senator that will not happen.

I do not want to detain the House overly long on these issues but it is of major importance to me that there should be accountability in principle. It is either a strength or a weakness that having been Attorney General in circumstances where I was not actually given material which I considered to be vital for two functions, first, to advise the Minister of the day and, second, to conduct civil litigation on behalf of the State, that lesson was not lost on me. Without unduly widening the debate I want to put on the record of the House that my predecessor as Minister, Deputy O’Donoghue, at all times wanted access to the same information and was deeply frustrated he could not find out the truth of the Donegal allegations that were accumulating at the time. It is absolutely untrue to suggest he was anxious not to have an inquiry. On the contrary, he was pressing the Attorney General at the time for a way to establish the truth of the Donegal allegations.

The problem was — it remained a problem until we changed the law — that a public tribunal of inquiry necessarily would have completely pulled the rug from under the raft of prosecutions which the Director of Public Prosecutions was apparently contemplating at that time. One could not have a debate in the Dáil and Seanad to establish a tribunal of inquiry and a process of public examination of witnesses if the people charged with misbehaviour in the form of criminal offences were to have a fair trial in the courts. What we eventually did was to change the law to [2384]enable a tribunal which was in this difficulty to conduct part of its proceedings in private so the obstacle was taken away from the creation of the Morris tribunal, which is what happened.

I defy anybody to state that, for an Attorney General faced with the proposition that people have the right to due process in regard to their trials, there was an overriding right of the State to sweep that away and compel them to provide all the information which would rip away their rights as accused persons under our system of criminal justice. It was, as the then Minister, Deputy O’Donoghue, informed the Dáil at the time, a matter which deeply frustrated him. Nonetheless, he was obliged to uphold due process and not to embark on an inquiry which would have run into the sands.

The solution was to change the law. However, the underlying feature of all that was — a point on which there is controversy at present — that there was enough information in the possession of the Minister or the Attorney General to know that something was seriously wrong in Donegal. Of course there was. However, the issue was what could legally be done about it. The then Minister, Deputy O’Donoghue, wanted to have a parliamentary inquiry or a tribunal of inquiry. I, as Attorney General, said I accepted a tribunal of inquiry was the preferable way to go forward but asked about the pending criminal prosecutions. That was the issue with which I was faced.

Central to all of that was a right on Deputy O’Donoghue’s part to see where the truth lay as best he could between all the various allegations. He had to make a policy decision on these issues. From the point of view of the Attorney General at the time, to try to work out how to defend these civil proceedings and to give decent legal advice to the Minister of the day, it was essential to see all the records. It was wrong, although it was argued in good faith — I am not impugning anybody’s honesty — that the members of the Government, who were accountable to the Dáil, were kept away from knowing in extreme detail what the conflicting accounts were and what the situation was on the ground in Donegal by virtue of the fact there was a view that once a file went to the DPP, it could not be disclosed to any other party. That was an extraordinary situation but, unfortunately, that was a view held in good faith at the time. It had to be challenged over a protracted period to change matters.

It is claimed I should have been aware there was some major problem in Donegal. I accept that. Everyone was aware there was a major problem in Donegal. However, the issue was what was to be done about it within the law and while upholding constitutional values. Some people wave around Commissioner Noel Conroy’s 37-page abstract on those issues. That abstract did not come to a conclusion and did not reflect any conclusion on the part of Superintendent Carty as to whether there had or had not been a murder in the case of Richie Barron. Instead, it [2385]flagged the proposition that further inquiries were ongoing into that issue.

One could not even be sure on that issue. Given the conflicting statements on either side of the issue, it was by no means clear a tribunal of inquiry was appropriate in the circumstances, especially when it would pull the rug from under the criminal prosecutions which that report apparently recommended should be brought against a number of people, including members of the Garda Síochána.

I am conscious that the powers in the Bill seem very strong, and that in malign hands they could be abused. However, there is the equal possibility that wrongdoing could be concealed if these powers did not exist. Every request by the Secretary General of the Department of Justice, Equality and Law Reform to see any scrap of paper from the Garda Síochána is potentially the subject matter of a parliamentary question, and the Minister is obliged to answer as to whether he has in fact invoked these powers. I do not know whether in every particular case the Minister might say it is not in the public interest that the exact nature of his inquiry was made, if it was a security related issue. However, at least he is accountable to Dáil Éireann in the form of a parliamentary question if he does invoke these powers. If his Secretary General were to use these powers, the Secretary General would be accountable in the form of a question put to his Minister.

The other point that must be borne in mind is that anybody who thought anything wrong or bad was afoot would be in a perfect position to avail of the constitutional privilege of going to a member of the Opposition or another member of the Government parties to tell him or her this was a matter which must be raised because the Minister or Secretary General of the day was abusing his or her power. The result for the abuser would be catastrophic if it were found to be an abuse.

I agree with Senator Maurice Hayes and other speakers that the inquiry process provided for in the Bill is very useful. There are occasions when, for example, in regard to the management of informers, it would be better to have a buffer between the Minister and the issues dealt with. For example, if it was alleged that an informer was extremely badly handled with grave public prejudice arising, it might be desirable that, as happened in the case of Shane Murphy, senior counsel, an independent lawyer would be brought in to examine the issue and report on it, rather than having the Minister of the day say “Let me at those files. I will look at this and make my decision on it”. In those circumstances, I presume the Secretary General would tell the Minister he was not willing to exercise his power in this regard and that he would suggest to the Minister to appoint an intermediary to protect himself or the State by putting an independent person between the Minister and the investigation.

[2386]I take the point made by Senator Jim Walsh about informers generally. Informers are a classic case of an area where a Minister should not inquire. I would never dream of asking the Commissioner, as matters stand, to tell me who his informers were in this or that organisation. I presume he would laugh at me if I was to casually ask him for a list of his informers. However, in the last analysis, there could come a point where it would be relevant whether an informer did or did not exist. I need only point to the recent experience in regard to the allegations made by Sergeant White to Nuala O’Loan, which led to the appointment of a three-person commission headed by the former Secretary to the Government, Dermot Nally, which investigated issues relating to the activities of an informer.

This demonstrates there are occasions when the Government must be in a position to find out what an informer did or did not do. It is an example in which Nuala O’Loan was given what appeared to her to be evidence which at the very least required a response, and the Irish State was in a position to appoint a three-person body to look into that issue. It would have been wrong for the Minister of the day to deal with the matter because he would have been tainted politically by it. It might be argued he was trying to cover up or would not like to hear bad news, if there was bad news at the end of the investigation. There is a great argument for having a three-person commission. They can make inquiries and advise the Minister on whether the claim is credible. These are important powers. The accountability of the Government to the Parliament is all-important. Senator Maurice Hayes and I have decided to declare a truce on the subject of an independent police authority. I have not yet seen a model that recommended itself to me.

I defend myself against the charge of trying to clasp particular ministerial powers to my bosom. If I were a member of the Opposition I would be much more worried if there were an independent policing authority. When confronted with the daily challenges to account for policing matters it would be easy for someone in my position to refer queries to the chair of the independent police authority. From the point of political convenience ignorance is sometimes bliss.

Many of the things that went wrong in Donegal were a result of the pendulum swinging away from the kind of micro-management that existed when Peter Berry was in the Department of Justice, to the isolation identified by Mr. Justice Morris. The pendulum must be brought back to the middle. If one is to be accountable to Dáil Éireann one must be knowledgeable. There is no point in pretending to be accountable if one does not know what is going on. Posing as a politically accountable person is useless if one abdicates one’s function of finding out, in extreme circumstances, exactly what is going on.

Members of the Garda Síochána must be in a position to answer questions put by their superiors. Otherwise, discipline does not exist. [2387]The Morris tribunal found that inquiries as to a garda’s whereabouts were effectively met with unsatisfactory responses. These included the response that representative associations would be consulted before an answer was given, that lawyers would be consulted, or that the person would go on sick leave and not make himself or herself available for interview. I agree with Senator Brian Hayes that it was a shocking state of affairs but that was the truth. Mr. Justice Morris found that to be the case, where people could select what they wanted to tell their superiors after consulting with representative associations and lawyers, or consulting a doctor on whether one’s heart would stand up to further interview. This culture is simply not acceptable.

I accept there is scope for bullying in these measures. There will be regulations to counter the exploitation of this and there will be protection for members to prevent them from being exploited by these provisions. In the final analysis, it cannot be the case that one can decide the extent to which one will be truthful to superiors when a legitimate inquiry is made. Neither is it acceptable if one decides one is to be the judge on whether it is a legitimate inquiry. These changes are important.

Mr. Justice Morris thought that I would rely on Circuit Court compulsion as the way to secure compliance with this obligation. It was not my intention to do so. I intended to do so by disciplinary regulations in any event but I am happy to dispel that suggestion by making this provision a core statutory part of this Bill. That is why Chapter 5 is so important.

Mr. Justice Morris’s point was that if this ethos had been there we would not be in the position of having a tribunal. People would not dream of going to a pub if they knew that the next day they might be questioned on it, and that prevarication on the response would result in the loss of their job. People will not go to a pub if they know that their job is on the line. People might do so if they believe that prevarication was possible when confronted about misbehaviour of that kind.

If it applies to a matter as comparatively innocent as drinking on duty it certainly applies to planting explosives and fabricating bombs. These things would not have been considered if there was a belief that any form of prevarication could be fatal to a career in an Garda Síochána. I am conscious of the points Members have made on the potential for bullying. I accept that the disciplinary regulations must provide that this provision cannot be abused or used for bullying, and that bullying is a disciplinary offence.

Senator Brian Hayes suggested that only an external officer should be involved. Truthfulness must be an organic thing. One cannot have a situation where it is only the appearance of an external officer that encourages a garda to appreciate the seriousness of the situation and to be truthful. When a sergeant or an inspector asks if a garda was in a pub there must be a definite [2388]answer. Replying that one will talk to the Garda Representative Association or one’s lawyers is not acceptable. That is what truthfulness involves.

Mr. B. Hayes: Information on Brian Hayes  Zoom on Brian Hayes  The question must be put by the sergeant.

Mr. M. McDowell: Information on Michael McDowell  Zoom on Michael McDowell  The sergeant must ask the question. If such questions could only be put by a neutral outsider, the member would hide behind a smokescreen of evasion and prevarication as long as the neutral outsider was not called in. We cannot have that culture in an Garda Síochána.

Acting Chairman (Dr. Henry): Information on Mary E.F. Henry  Zoom on Mary E.F. Henry  The House is due to adjourn at 10 p.m. Group 7 may be started in the two minutes that remain.

Mr. M. McDowell: Information on Michael McDowell  Zoom on Michael McDowell  Perhaps we should get going.

Mr. J. Walsh: Information on Jim Walsh  Zoom on Jim Walsh  I propose an amendment to the Order of Business, that the Minister be allowed finish his statement on group 7 of the amendments.

Acting Chairman: Information on Mary E.F. Henry  Zoom on Mary E.F. Henry  Is that agreed? Agreed.

Mr. M. McDowell: Information on Michael McDowell  Zoom on Michael McDowell  Chapter 3 of the Bill, which deals with the roles of the Minister and the Garda Commissioner, includes provisions which require the Garda Commissioner to prepare a strategy statement and an annual policing plan. In addition to those provisions, I decided to require the commissioner to prepare a three year review report that will review the efficiency and effectiveness of the management and deployment of resources available to the Garda Síochána during that three-year period. Provision is being made for the report to contain recommendations that the Garda Commissioner considers necessary for improving the management and deployment of resources. The commissioner must address himself to the question of the efficiency of the force, whether he is getting a bang for his buck.

As I indicated on Committee Stage in the Dáil, the number of attested members of the Garda Síochána will reach 14,000 in 2006. The number of fully graduated members will exceed 14,000 in late 2007 or early 2008. These will be historically high numbers for the Garda Síochána and I want to be sure that their deployment will be put to best effect and that any difficulties relating to the management and deployment of members, or any other resources for that matter, and any recommendations for improving the management and deployment of resources, will be brought to the attention of the Minister.

That is the reason for these provisions. I consider the submission of such a report every three years to be an essential reporting requirement when one considers the monetary costs associated with resourcing and equipping a modern police force. Provision is made for the Minister to lay these reports before the Houses of the Oireachtas [2389]subject to the usual exclusions with regard to State security, commission of offences, possible prejudice to a criminal investigation or a risk to the safety of any person.

Following the publication of the first Morris tribunal report in 2004, the Garda Commissioner accepted its findings and requested Deputy Commissioner Fitzgerald to examine the report, review the findings of the tribunal and prepare a report on its implications for the Garda Síochána. In order to comprehensively consider the implications and recommendations of the tribunal’s report, Deputy Commissioner Fitzgerald established nine working groups, one of which looked at a number of areas of discipline. Among other matters, this group looked at the question of maintaining high standards and developing professional standards in an Garda Síochána. Among its recommendations, it suggested that consideration be given to changing the title of the discipline section, the complaints section, internal affairs and human resource management to a professional standards unit.

Whatever about changing the title of the internal administrative area within the Garda Síochána, I regard the establishment of a dedicated and highly motivated professional standards unit as a core requirement for the Garda Síochána at the present time. It is not good enough to impose this from the outside by the inspectorate; it is essential that the structures of the Garda Síochána internalise the requirement for high professional standards. In light of the findings in the Morris tribunal report, there is much work to be done. I see such a unit contributing significantly to the efforts of the Garda Commissioner in restoring and promoting a positive image of the force.

  10 o’clock

A police standards unit is now a feature of the policing landscape in the UK where it was established by the Home Office in 2001. This unit forms a vital part of the British Government’s police reform agenda. The focus of the unit’s activities is to measure and improve police performance in different command units and to examine the underlying causes of performance variations and identify and disseminate good practice, supporting those who need assistance.

There is no doubt in my mind of the need for a similar unit here. The new unit will be under the direction of a chief superintendent and its focus will be on improving all aspects of Garda operational, administrative and management performance, sponsoring, promoting and disseminating proven excellent national and international practice. I will also provide for the Garda Commissioner to submit a report to the Minister by 31 March each year outlining the activities of the professional standards unit in the preceding year.

With regard to what Senator Tuffy said, there is no reason why there should not be an external review of all these issues also. The fact that my proposal for this is on an internal basis does not mean the suggestion made by the Labour Party is [2390]a bad idea. I am not excluding it, but I was not prepared to delay all reform until it reported in 18 months time, because that would have had us slap up against an election. In those circumstances, the process of Garda reform would have been fatally undermined.

With regard to amendments Nos. 56 to 63, inclusive, in the course of the debate on Committee Stage and in response to points made by the Labour Party justice spokesperson, I undertook to again examine the audit committee provisions of the Bill. Deputy Costello was concerned that the section seemed to give too much control to the Garda Commissioner. The Chairman of the select committee also observed that there could be a problem with the independence of the audit committee if it was appointed by the Garda Commissioner. I looked at the position again and satisfied myself that these provisions as originally drafted were entirely conventional.

However, following the publication of the second Morris tribunal report and, in particular, its recommendation on the need to strengthen the existing internal Garda audit section through the induction of officers from outside police forces, I have decided to change the method of appointment the audit committee which is to be established by the Bill. While the tribunal’s recommendation is obviously a matter that will require further consideration in the context of the new provisions in the Bill allowing for the making of regulations governing the intake into the force of former members of outside police services, it appeared to me that in so far as the provision in the Bill for a specific audit committee is concerned, it was preferable to strengthen it in the following respects.

I substantially revised this section on Report Stage. First, while the Garda Commissioner will be required to establish the committee, all of its members, including a deputy Garda commissioner, will be appointed by the Minister. In the light of that change, I removed subsection (2)(b) which provided for one person to be nominated by the Minister. I also amended subsection (3) to provide for the Minister to designate the chairperson of the committee and I provided in subsection (4) for the members of the committee to hold office for a period to be determined by the Minister instead of the Garda Commissioner. Consequential amendments were made to subsections (4)(a) and (b) with the insertion in subsection (4)(b) that where members are removed from office it must be for stated reasons.

I amended subsection (6) to provide that members of the audit committee hold office on such terms and conditions as may be determined by the Minister with the consent of the Minister for Finance.

Debate adjourned.

Acting Chairman: Information on Mary E.F. Henry  Zoom on Mary E.F. Henry  When is it proposed to sit again?

[2391]Mr. J. Walsh: Information on Jim Walsh  Zoom on Jim Walsh  At 10.30 a.m. tomorrow.

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