Brendan Howlin (Wexford, Labour) | Oireachtas source

I will deal with those matters first as they are the simplest ones to deal with. The public interest reference relates to the investigation by GSOC of a complaint it receives where it appears to that body to be in the public interest to carry one out. That is the way it deals with complaints. The reference I have made to the public interest refers to affording the protections under the legislation for workers. It does not have to be in the public interest to make the declaration, nor would the declaration have to be in the public interest for a garda to avail of the protections. It is the next step involving an investigation GSOC undertakes that has a public interest aspect. There is not a different regime for gardaí. They will have the same protections when making a disclosure to GSOC as those set out in the Protected Disclosures Act.

I turn to the general points made by Deputy Sean Fleming. I do my best not to be discordant on these issues, but it is very difficult, having crafted whistleblower legislation twice and having had it voted down by the Deputy as completely unnecessary. The Minister, Deputy Pat Rabbitte, did the same. It was stated the way to go was sectoral application. I remember the rows we had with the Deputy and his party when the original 2005 Bill was going through in attempting to provide for whistleblowing in the Garda. It was just incredible. I proposed the establishment of a Garda authority in 2002 and fought for nearly two years to have the Morris tribunal open an investigation into wrongdoing in County Donegal, allegations about which had been given to me. While we managed to have a tribunal of inquiry, Fianna Fáil insisted, despite my best efforts, on the Department of Justice and Equality and its Minister being excluded from the terms of reference. On many of the things we now need to find out and which we could have found out a decade ago we were resisted by Fianna Fáil. In that historic context, it is difficult when people are genuinely coming to the issue with positivity and openness to have history rewritten. It is like Pol Pot talking about Year Zero as if nothing happened before and as if Fianna Fáil did not resist tooth and nail greater openness on these matters for the 14 years it was in office.

Let me deal with the specifics. I do not accept the Deputy's point that his amendment is better. It is a very simple one to provide that any protected disclosure made by a member of An Garda Síochána should be made directly to the Garda Síochána Ombudsman Commission. That is it, "thank you very much, Ma'am." It does not state what should happen to it, whereas my amendment provides for how it should be investigated. If I were to accept the Deputy's amendment, it would be discordant with the entire regime. My ambition from the beginning has been to have every worker in the public and private spheres subject to the same regime. We often make legislation in the context of the latest news round, but we should do this in terms of what is the ideal and right way to go, which is to make An Garda Síochána subject to the same regime as everybody else. There should be a clear recipient for protected disclosures and clear protections analogous to those available to every other worker afforded to members of the Garda. That is what the amendment I have set out will achieve.

I have regard to the other strong point the Deputy made on the phrase, "If the Ombudsman Commission is prescribed". This is an amendment to the 2005 Act and it must be consistent with its language, as introduced by the Deputy's party in government. There is a formal Government decision and the Deputy is wholly wrong, as he knows, to say the statement issued is wrong. It is intended to bring GSOC into the position of being the recipient of protected disclosures from members of the Garda. That is the formal position. I have regard to what the Deputy says, as well as to what Deputy Mary Lou McDonald said on phrasing. Sometimes we can be wrong in understanding things. If it is possible to put a different phraseology in place to the effect that GSOC will be prescribed, I commit to doing so on Report Stage. I must check to see if that is proper with the Office of the Parliamentary Counsel and the Attorney General. It is absolutely our full intention and there is already a formal Government decision to that effect. If there is any element of doubt, I will address it.

The other point of discord the Deputy made was related to the word "may". If one establishes an independent investigative body, it must be given the necessary discretion to be independent. One does not say it shall do something. It may do something if it determines that it is right and proper to do so. The broader sense of the refurbishment of the Garda Síocána legislation does not fall to me. I was anxious to include the Garda in this legislation as we should not make fish of one and fowl of another. They are all public sector workers and I fought hard to achieve this. We made some progress in the initial draft, but we have made enormous progress in this draft to get to where we are now. The other refurbishment of the Garda Síochana Act, including the structure of GSOC's powers to strengthen them, is another matter. I do not want to speak out of turn or rule in commenting on other legislation, but GSOC has pointed to this and the Government wants to facilitate it. The Deputy is almost adopting a twin approach. He says we should give it all the powers in the world, but, by the way, it is not fit for purpose.