Seán Fleming (Laois-Offaly, Fianna Fail) | Oireachtas source

In my view, this is the key issue for this legislation, as evidenced by the three amendments I have submitted on section 19. I do not have a copy of the speech I made on Second Stage, but I strongly opposed section 19 at the time because it removed whistleblower protection from members of An Garda Síochána and attempted to create a separate procedure which involved regulations being made by the Minister, having consulted with the Minister for Justice and Equality, the Garda Commissioner, the Garda Síochána Ombudsman Commission and the inspectorate. Thank God we changed that section, although I have issues with how the Minister has dealt with it. Can the Minister imagine the situation if that same section was still part of the Bill today and if the former Minister, Deputy Shatter, and former Commissioner Callinan were in place? There would be no protection for anybody.
I am pleased the Government has agreed to make some changes, but I am not satisfied with those the Minister has made. In the context of section 19 as proposed on Second Stage, there are now a number of amendments to it, some of which are in the name of the Minister. I will refer to the amendments in my name first because they follow logically on the position on Second Stage and will then move on to the Minister's amendment. I am pleased the Minister agreed with my contribution on Second Stage, that section 19 should not be the position and that gardaí are entitled to the same level of protection, under the Protected Disclosures Bill as every other worker in the country. The Minister has agreed now that gardaí should be part of the mainstream and in line with everybody else. He has agreed this in principle, but I do not believe he has achieved it in the amendment he has put forward, amendment No. 18.
If the Minister's amendment, No. 18, is passed, I will not be able to move my amendments because they are logical alternatives to the Minister's amendment and are part of the same grouping. Therefore, I will put forward my views now. Having looked at all the amendments being discussed in this grouping, amendments Nos. 10, 11, 13, 14, 18, 19, 20 and 22, I believe that amendment No. 19, in my name, is the right amendment, but I have no problem with technical adjustments that may be required to it. I am happy also with amendments Nos. 10 and 11. Amendment No. 10 allows the Garda Síochána and members of the Defence Forces access to legislation for unfair dismissals if they are dismissed and amendment No. 11 allows members of the Garda and the Defence Forces access to the standard industrial relations procedures, to rights commissioners and everything else. These amendments are a logical follow through and we are happy with them.
Amendments Nos. 13 and 14 deal with tidying up the legislation once the section related to the discredited confidential recipient and the provision for the regulations proposed in the original section are removed. Therefore, I am happy to accept amendments Nos. 10, 11, 13 and 14.
I will move now to my amendment, No. 19. This amendment is simple, straight and direct and achieves what amendment No. 18 does not achieve. My amendment states:

Any protected disclosures made by a member of An Garda Síochána shall be made directly to the Garda Síochána Ombudsman Commission.

This is what is required in the legislation if it is to have the public confidence.
The Minister's amendment deals with "ifs" and "mays" all of which might never happen. The first word in the proposed section is "If" and later it suggests the ombudsman commission "may" do something. This wording is weak and ineffectual and may never apply, because that "if" may never happen. On the other hand, my amendment is very clear. The essence of what the Minister wanted to and is trying to achieve is to ensure that a member of the Garda Síochána will be able to make a complaint or protected disclosure directly to the Garda Síochána Ombudsman Commission. That is what is proposed in my amendment, No. 19. This appears to be what the Minister is trying to tell us he wants to achieve with amendment No. 18, but I believe he knows in his heart it does not achieve that. In that context, amendment No. 19 is the superior amendment.
Amendment No. 20, in my name, proposes to make a change on page 18, line 19 - to delete "Ombudsman Commission and the Inspectorate" and make the substitution I have proposed. In the original legislation, the now discredited Minister and departed Commissioner were obliged to consult with the ombudsman commission and the inspectorate before drafting the separate regulations for the Garda. On Second Stage, I pointed out that this consultation should have included representatives from the Garda Representative Association, the Association of Garda Sergeants and Inspectors and a public interest group and suggested the Minister would have the latitude to decide on which public interest group it should be.
Given the Minister was going to draft regulations before he decided to mainstream the Garda Síochána, I had drafted my amendment before he came up with his amendment. I submitted my amendments a month ago and clearly I must have had some foresight not to trust the Minister and the commissioner who were in situat that stage in seeking that they not be allowed go behind closed doors to draft regulations. I asked on Second Stage for the Garda Representative Association, Garda sergeants and inspectors and public interest groups to be involved in such regulation. The Minister has now avoided the need for this by his amendment, but what I am trying to achieve is far superior to what the Minister had in the legislation.
Amendment No. 21 has been ruled out of order. It related to the draft form of the regulations, but it is not necessary now because there will be no regulations. Amendment No. 22, again in my name, was also concerned with regulations and asked that they be passed within 30 days of the passing of the Act. We did not want to come back in a year and find that while the legislation was in place, the Minister for Justice and Equality had not implemented the regulations. That was the reason for the 30 day time limit I suggested, which was the correct thing to do at the time, as it was before the Minister proposed the amendments he has put forward today. The Minister can understand where I was coming from in that regard.
In regard to the Minister's amendment, I agree with two elements of it. First, I agree with the abolition of the confidential recipient process. This process has been a farce and a discredit to everyone associated with it. I also support the essence of what the Minister proposes here. I said plainly on Second Stage that I did not trust the then Minister for Justice and Equality to be allowed amend the Garda Síochána Act to make these regulations, as was proposed at the time. I said at the time that I would trust the Minister here today far more than I would trust the then Minister for Justice and Equality and asked for him to make the changes required in this legislation rather than allow the former Minister for Justice and Equality make the change. At least the Minister has taken an initiative in this regard. I am happy this initiative has been taken by the Department of Public Expenditure and Reform and that it will be in the primary legislation and we will not rely on the Department of Justice and Equality to deal with the issue. I welcome the fact the issue is being dealt with here rather than behind closed doors in the Department of Justice and Equality.
I want to examine the Minister's amendment now. It proposes to amend the Garda Síochána Act 2005 by inserting the following section after section 102:

“Protected disclosures relating to the Garda Síochána
102A.(1) If the Ombudsman Commission is prescribed under section 7 of the Protected Disclosures Act 2014 ...

Again, the Minister uses the word "If".

Let us analyse this line by line. The legislation stands and falls on these few lines. The Minister has not even said today that GSOC will be a prescribed recipient under section 7. He used the word "if" with regard to prescription. We cannot accept the legislation on the grounds that he may decide to prescribe GSOC as a recipient if he feels like it. The use of the word "if" negates the entire section. As prescription might never happen, the reference might as well not be included. I would accept it if the Minister stated the commission "shall" be a prescribed body under section 7, but I will not accept the use of the word "if" because prescription might never happen.

The next line of the Minister's amendment is fatally flawed also. The proposed subsection states that if GSOC is prescribed under section 7 of the Protected Disclosures Bill 2014 in respect of disclosures relating to An Garda Síochána, it "may", if it appears to it desirable in the public interest to do so, investigate any disclosure. It is now the case that if the Minister decides to make GSOC a recipient for protected disclosures, it "may", if it believes it to be desirable in the public interest to do so, investigate any disclosure relating to it, even if the worker, within the meaning of the Bill, making the disclosure is a member of An Garda Síochána.

My amendment suggests any protected disclosure made by a member of An Garda Síochána shall be made directly to GSOC. The Minister's amendment-----