Simon Harris (Wicklow, Fine Gael) | Oireachtas source

The amendment concerns the powers available under the section to a judge who has been invited by the Chief Justice to hold an inquiry into any matter, as the Deputy said, giving rise to a proposal to remove a Garda Commissioner or deputy Garda commissioner from office under section 31. Section 31 sets out the procedures which may give rise to the judge being invited to carry out an inquiry by the Chief Justice. Section 32 provides for the conduct of an inquiry by a judge appointed under section 31. An appointed judge may conduct an inquiry in the manner he or she thinks proper and will have the power, rights and privileges vested in a judge of the High Court. The appointed judge under section 31 is the superior court judge, which refers to a judge of the Supreme Court, Court of Appeal or High Court.

I have sought legal advice on the issue the Deputy raised. Such advice provided to my Department has confirmed such judges have ample powers, which are sufficiently broad to address what appears to be the Deputy’s amendment, including the existing common law of criminal contempt powers. The object of such power is punitive. It is to uphold the law generally and the authority of the courts.

The amendment reflects in a number of respects the proposed powers and penalties for non-compliance assigned to a person conducting an inquiry under section 48. This is where the suspension or removal from office of an assistant Garda commissioner or chief superintendent is being considered by the Garda Commissioner. I am advised the powers listed in section 48 are in the form proposed as the person in that instance is not restricted to a judge of the superior courts nominated by the Chief Justice. That is where that difference arises from.

Apart from the key differences between sections 32 and 49, I am also advised the proposed amendment could result in a situation where a judge of the Court of Appeal or Supreme Court is applying under section 32 to the High Court to ensure compliance by requirements imposed on a person or persons during the inquiry, which I do not think is the Deputy’s intention.

Having regard to these factors, I am not minded to support the amendment. I hope the Deputy takes comfort from the fact we have sought legal advice to satisfy ourselves the issue he seeks to cover is covered and clear and sufficient powers are broadly available to our superior courts, including the existing common law criminal contempt powers, which I think will address the concerns the Deputy raises.