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

I refer the Minister to the rest of his amendment. It is very simple - we have to get rid of the word "if". The Minister can agree to prescribe the commission. If he has not yet decided on all the bodies that could be recipients and he has to prescribe them in some way by regulation under section 7, this issue will not be dealt with for the likes of Sergeant McCabe or any other such individual whose case may arise in the future. Members of the Committee of Public Accounts, including me and Deputy Mary Lou McDonald, have met Mr. McCabe and can testify to his character and good standing and the reasonable approach he took in all cases. We met him for hours at a meeting of the committee. However, I am referring to future cases. Such persons will have zero protection under this legislation until such time as GSOC is prescribed as a public recipient of complaints. Stipulating that the Minister may prescribe it if he feels like it will not pass muster.

In the light of everything that has happened, the Minister would do well to make one exception. He was leaving the Garda out of this legislation altogether. He has agreed with my suggestion on mainstreaming, but he should go the full distance. If GSOC is to be the first body to be prescribed as a public recipient, he will have done a good day's work. He can do this. He can agree to the principle today or on Report Stage, but leaving the big decision until sometime down the road will not be bought by the public. He might see the merit in what I am saying. The Minister for Transport, Tourism and Sport, Deputy Leo Varadkar, says he gets it and I hope the rest of the members of the Government do so too. Telling us that the Government will put the legislation through without putting what I suggest in place represents a bad day's work. The Minister needs to make an exception.

The commission, if it appears to it to be desirable to do so, "may" investigate a complaint. We need to find a word other than "may". I acknowledge that the commission might receive frivolous or trivial complaints — that is an issue — but there ought to be a mechanism whereby people can be assured the decision to investigate will not just be at the whim of the commission. The word "may" is too weak.

Ministers have been tripping over one another in recent days. Not only have they lost confidence in the Department of Justice and Equality and many others, they have also stated GSOC needs a root and branch review. Giving the body discretion as to whether it should carry out an investigation when there is a lack of confidence in it among members of the Government does not represent a sufficiently strong approach.

Let me refer to a comment made by GSOC's director of investigations, Mr. Ray Leonard, who I believe attended a meeting of the justice committee this morning. He issued a press release and a statement. Some time ago GSOC or some other body sought submissions on the operation of GSOC. Mr. Leonard made a personal submission and reiterated that position in the Oireachtas today. He has condemned GSOC, although he is its director of investigations. He has condemned it as "not fit for purpose" in his personal submission to the justice committee. He claims the Garda oversight body lacks effective independence and that the Minister still has too cosy a relationship with GSOC on occasion and that this has been unhelpful. He states — this should interest the Minister for Public Expenditure and Reform — GSOC does not represent value for money for the taxpayer based on the way it is doing its business. This is a serious condemnation and the body needs to be strengthened quickly. Therefore, I cannot be happy with the Minister not giving a commitment on who the recipient will be and how that recipient might deal with complaints, when received.

Subsection (2) of the proposed new section states: "The provisions of this Part relating to investigations and reports apply with the necessary modifications in relation to a relevant wrongdoing...". The Minister might explain what "with the necessary modifications" means. I am a layman, not a legal practitioner, and do not understand it. The Minister will have to give us examples of what precisely he means.

If the legislation is passed today with the Minister's amendment intact, there will be no protection for a future Maurice McCabe because there will be no guarantee that GSOC, bad as it is and much as it needs reform, will be a confidential recipient. The Minister went out of his way not to provide for this. He issued a press release last week, on 6 May, stating, "This change builds on that earlier secured by the Minister on 24 February 2014, which allowed members of An Garda Síochána to make protected disclosures to the Garda Síochána Ombudsman Commission." It does not. The press release is not true. It will allow members to make protected disclosures only if the Minister decides to make the commission a recipient. One week after he issued that statement, there is no suggestion he will decide to make it a recipient.

I am happy the Minister has gone the distance with me since Second Stage by agreeing to mainstream An Garda Síochána in the legislation, but he needs to go a step further and implement the recommendation made in his press release last week. He stated the members of An Garda Síochána would be able to make protected disclosures. However, this is not included in the legislation. It may be his intention to do so some time in the future, but it will not satisfy this side of the House if it is not written in the legislation.

The Minister's press release states: "The separate and unique arrangements applicable to An Garda Síochána under the Garda Síochána Act of 2005 will no longer apply upon enactment of the Bill and members will, at that stage, report in a similar manner to and have the same protections as every other worker". I agree to mainstreaming.

This is my first intervention and I will have a second response for the Minister. I want him to respond to it, as the political issue and the people on the stand constitute the broad issue.

After we have discussed this aspect of the Bill, I want the Minister to tease out how the amendment will work. The amendment refers to section 91 of the Garda Síochána Act 2005 which affects sections 95 and 98. The Minister must explain to us step by step how the amendment to which he asks us to agree fits in with the rest of the Garda Síochána Act. I will come to the specifics of that legislation and the way in which the proposed change tallies with it separately.

In general, I will be happy if amendments Nos. 10, 11, 13 and 14 are made. I presume amendment No. 18 will go through. I am disappointed that I cannot move my three amendments, but there is a fundamental problem with amendment No. 18 in the Minister's name.