Mick Wallace (Wexford, Independent) | Oireachtas source

I wish to share my time with Deputies Clare Daly, Luke 'Ming' Flanagan and Catherine Murphy.

I am disappointed the Minister, Deputy Shatter, is not here. I did not think he would flunk this debate.

I would like to start by thanking those who have helped to bring the Bill to this point, namely, Leah O'Leary and Alison Spillane, who work in our Dáil office. I would like to acknowledge pieces of work by different people and organisations, whose words and ideas we have built into this legislation, namely, Professor Dermot Walsh, Dr. Vicky Conway, Fr. Peter McVerry, Dr. Shane Kilcommins, the UN, the Council of Europe, the European Committee for the Prevention of Torture, the Irish Human Rights Commission, the Irish Council for Civil Liberties, Combat Poverty, Transparency International Ireland, the Patten report, and the Morris tribunal.

In 2008, the Morris tribunal completed its extensive work cataloguing corruption, systemic failures in senior Garda management and working practices, and the failure of accountability systems. The Garda Síochána Act 2005 was then posited as the panacea to the many deep-rooted issues uncovered by Mr. Justice Morris. However, it is that Act which this Bill amends. I strongly believe that the recommendations of the Morris tribunal have never been fully addressed by the State, and that the 2005 Act does not provide the tools and structures needed to overcome the embedded cultural problems underpinning discipline, and the blue wall of silence so bleakly exposed by Mr. Justice Morris. The many people across the country who have contacted me and other Deputies can testify to this failure through the sorry telling of their own experiences at the hands of some members of An Garda Síochána.

In this Bill, we have proposed the establishment of the Garda Síochána independent board with monitoring, supervisory, and oversight functions over An Garda Síochána. We consider this to be an important step in strengthening the democratic accountability of An Garda Síochána, which is necessary to promote public confidence and trust in the force. The board's objectives would include the promotion of respect for human rights within the Garda Síochána, and the board's functions would include the human rights proofing of all Garda policies, procedures and practices, and the publication of all codes and operational policies of the Garda Síochána.

Some human rights requirements are partly provided for by existing arrangements, but they have only an indirect effect with respect to human rights compliances. A police organisation should be focused on keeping human rights central to everything it does, in its dealings with members of the public, whatever their background or social standing, and in its management of its own members.

As far back as 2006, Dermot Walsh and the Irish Council for Civil Liberties expressed concern that the new formal structures of the Garda Síochána Act 2005 ran the risk of over-centralising as well as politicising the Garda, which would ultimately undermine its independence. The police must be the people's police service, and not a tool of government. By allowing the Minister for Justice and Equality to set priorities for the Garda Síochána, to issue directives to the Commissioner and require the production of documents, by making the Commissioner directly accountable to the Minister, and utilising the vague term "Government policy", the Garda's protection from political interference is potentially diminished within the present structure.

What is missing from current Garda oversight structures is civic oversight in the form of an independent policing board, similar to the Northern Ireland Policing Board which was considered a central plank of reform in the Patten report. An independent Garda board could also have an oversight role in issues such as the allocation of Garda contracts, management performance, the setting of clear performance goals to which the Commissioner would be accountable on an annual basis, and the appointment of senior Garda officers up to and including the Commissioner, as well as members of the Ombudsman Commission.

There has never in the history of the State been a root and branch independent review of the workings of the Garda Síochána. One of the board's new functions would be to conduct a five yearly review of Garda Síochána working practices, accountability, operational management and governance. The board would also hold monthly meetings with the Garda Commissioner regarding the performance of An Garda Síochána.

The board would see to it that human rights would be incorporated into every aspect; it would become a fundamental part of policing, rather than a token gesture. Human rights proofing is not possible currently because the Garda force do not do it internally, and because it does not publish the Garda code it is not possible to assess whether it meets human rights standards. Although there is provision in the Garda Act 2005 for the adoption of a code of ethics to set out the standards of conduct expected from each garda, the missing Minister has not seen fit to produce or adopt one. The need for greater transparency would be much helped by the requirement to publish all relevant codes, operational policies and procedures. The new independent board would also be involved in the training and education of gardaí in human rights.

The independent board would do much to improve democratic accountability by the very civic nature of the board's make-up but also by greater community engagement and consultation. There would be quarterly meetings of the joint policing committees, JPCs, which are made up of local authority, community members and a senior garda. The JPCs would have an input into the annual policing plan, and through communication with the board, in setting priorities of the police force and the strategy statement. Policing by consent must be a primary aim of the Garda Síochána, and for this to happen the people must have some say in how they are policed. A young adult in Darndale should be able to express his views as to how he thinks he should be policed, he should be able to go to a local Garda station and discuss the matter.

The independent board would be involved in policing unlike the Garda Síochána Ombudsman Commission, GSOC, which is on the outside looking in, but the board would not be a police body. Giving power to the board would be a diffusion of power and a depoliticisation of the police force - it would no longer be in the hands of one person, one political grouping. With the present structure, for the Minister to criticise the Garda would be a bit like him criticising himself, not something he is prone to do. The Garda is currently accountable to the Dáil, via the Minister - elected members may challenge the behaviour or workings of the police force through questions to the Minister, whose answers will vary from the interesting to the non-informative - which is a poor system of accountability by any measure. Furthermore, the then Minister for Justice explicitly stated in this House in 1987, that the government of the day should never criticise the Garda Síochána. This overly deferential treatment of the organisation and management of the Garda Síochána was identified by Dr. Vicky Conway as having prevented the absorption of Mr. Justice Morris's most over-reaching findings, and has allowed the acceptance of the fact that wrongs had occurred, but also the denial of a need for ongoing concerns regarding the workings of the Garda Síochána. Challenging the workings of An Garda Síochána would be unlikely to garner favour for a Deputy, be it on the street, in the media or at the ballot box. The Morris tribunal did not just identify malpractice and corruption on the part of individuals, but was also at pains to stress that many of the problems were institutional; the tribunal highlighted the existence of a culture that needs to be challenged if we are to have a police force that operates to the best international standards.

A recurrent theme at the heart of the accountability deficit in the Garda Síochána is the unwillingness of some gardaí to submit to and co-operate with the disciplinary authority. It is one of the features of Garda practice that the Morris tribunal found most shocking. As Dermot Walsh said, "Sometimes discipline within the force is frustrated by members deliberately seeking to derail criminal or disciplinary inquiries against colleagues, or combining to maintain a blanket denial of any wrongdoing on their part - the Blue Wall of Silence".

The Bill also provides for the reform of the Garda Síochána Ombudsman Commission, to strengthen its independence and impartiality. Much of this reform has been requested by the commission. Its powers and functions are broadened, recognising that the commission's remit was always intended to be investigatory, rather than one of review and oversight.

The admissibility criteria for complaints are widened, first, in regard to time limits by extending the six-month time limit to one year, or two in cases where there is an alleged criminal offence. Second, the definition of Garda is expanded to include former members of the Garda Síochána.

A third ground of admissibility is introduced which relates to a newly-created code of service. The Garda Síochána Ombudsman Commission has admitted that serious failure of service or inefficiency currently fall into something of a grey area of inadmissibility, for which this new code of service would provide. The 2011 and 2012 figures show that GSOC receives an average of six complaints per day regarding Garda misconduct, but the most recent inadmissibility figures show that approximately 40% of all complaints received by GSOC are deemed inadmissible.

This is wholly unsatisfactory from an accountability perspective. The Bill addresses that situation.

At present, the Garda Síochána Ombudsman Commission is confined to investigating individual complaints and is not allowed to examine policies or procedures. We propose to amend section 106, as recommended by the UN special rapporteur, Margaret Sekaggya, in her recent report to the UN. This will allow the commission to initiate its own investigations of Garda policies and procedures where it sees fit to do so, rather than relying on the consent of the Minister as is currently the case. There was a controversial incident when the commission was refused permission from the Minister of the day to investigate the Garda management of protests against the Corrib gas project. The Bill would also require mandatory supervision of any investigation referred back to the Garda. At present, one third of investigations arising from admissible complaints are referred back to the Garda for internal unsupervised investigation. This needs to change. In addition, it should not be possible for a complain to be referred back to the Garda without the consent of the complainant.

This Bill proposes the removal of the provision in the 2005 Act which allows serving gardaí to be seconded to the Garda Síochána Ombudsman Commission. It also proposes the insertion of a new section to give the commission full and independent access to systems such as PULSE, subject to State security requirements. This would eliminate the need for serving gardaí to be in the commission. It is proposed to expand the definition of "serious harm" to include injuries that would correspond with the definition of "torture, inhuman or degrading treatment" in Article 3 of the European Convention on Human Rights and injuries that would amount to rape or sexual assault, an omission that has been highlighted many times by the commission. Importantly, the Bill also provides for a more prompt supply of evidence to the commission. This is a response to the commission's unprecedented move in May of this year to speak publicly about the serious issues it is encountering with regard to information exchange and co­operation with the Garda Commissioner.

Mr. Justice Morris warned in his report that in the absence of substantial long-term efforts to introduce reforms, the activities documented by the Morris tribunal would be repeated elsewhere in Ireland. Recent reports certainly indicate this is the case. I refer to the penalty points controversy, the treatment of whistleblowers, the report on the Garda handling of the Fr. McCabe allegations, the Minister and Garda Commissioner's recent abuse of their powers with an explicit political motivation, the Garda Síochána Ombudsman Commission's unprecedented criticism of the Garda's lack of co-operation and the commission's criticism of Garda handling of the management of informers. The recent comments of Mr. Justice Murray of the Supreme Court, when that court overturned the High Court decision to extradite Ian Bailey to France, were perhaps most damning of all. The Supreme Court referred to a DPP document regarding the Garda investigation as "dramatic and shocking" in its content. The court referred to a former DPP's description of the Garda investigation as "thoroughly flawed and prejudiced", culminating in "a grossly improper attempt to achieve or even force a [prosecution] which accorded with that prejudice". Mr. Justice Murray said that this amounted to conduct in the course of a police investigation which, if true, strikes a blow against the fundamentals of the rule of law on which this State is founded.

Our police force is separated from the rest of our society by the powers afforded to it. Rights to liberty, privacy and property can be superseded by the need for our police to perform their functions - the prevention and investigation of crime - as effectively as they can. To achieve balance with the interference to these rights, police are required to answer for the use of their powers to ensure they are being used in an effort to enhance the rights of the majority. Their power must be limited by obligations to the rights of citizens, such as the right not to be subjected to torture, inhumane or degrading treatment. Accountability is necessary to ensure our police use their powers only when they should and always with respect to the human rights of every individual, regardless of his or her background or station in life. If one gives someone lots of power, one must introduce checks and balances to go with it. The cultural change that is required is unlikely to come from within. We need a Government with the will to make it happen.

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