James Lawless (Kildare North, Fianna Fail)
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We have not received any apologies today. I welcome our witnesses, who are joining us on the call. I remind members and witnesses to mute their microphones when they are finished speaking so that we do not interfere with each other. I ask participants to switch their mobile phones to flight mode, because they can interrupt the sound recording, which is not always discernible until afterwards.

Today we are undertaking pre-legislative scrutiny of the policing, security and community safety Bill 2021. The purpose of the meeting today is to have an engagement with a number of stakeholders who have made written submissions on the aforementioned Bill. The witnesses are appearing virtually before the committee, and in all cases, from outside the Leinster House precincts. Members are appearing both virtually and physically, but in all cases, from within the Leinster House campus.

T pre-legislative scrutiny of the General Scheme of the Policing, Security and Community Safety Bill 2021. The purpose of the meeting is to have an engagement with a number of stakeholders who have made written submissions on the aforementioned Bill. Our witnesses are appearing virtually before the committee, and in all cases, from outside the Leinster House precincts. Members are appearing both virutally and physically, but in all cases, from within the Leinster House campus.

I welcome the witnesses. I will invite them to speak in the order in which we received written submissions. From the Policing Authority, I welcome Mr. Bob Collins, chairperson; and Ms Helen Hall, chief executive. Next, in terms of order of submissions received, I welcome representatives of the Garda Síochána Inspectorate, Chief Inspector Mark Toland and Deputy Chief Inspector Pauline Shields. From the Irish Council for Civil Liberties, we are joined by Ms Doireann Ansbro, head of law and policy; and Ms Gemma McLoughlin-Burke, procedural rights fellow, who are most welcome. Last, and by no means least, from An Garda Síochána, we are joined by Commissioner Drew Harris and his colleagues, Deputy Commissioners Anne Marie McMahon and Shawna Coxon. They are welcome. It is good to have them with us to hear their views and exchanges. We have introduced a protocol whereby representatives of the Department of Justice attend our meetings as observers, not necessarily to present, but to be available to answer questions and clarify matters as the need arises. In that role, we are joined today by Mr. Doncha O'Sullivan, assistant Secretary General; and Ms Anne Barry, principal officer.

I have already mentioned housekeeping in terms of the muting of microphones. I ask participants to be mindful of that as the meeting progresses. The other point is the usual note around privilege, with which regular attendees will be familiar. For anyone who is not, it is important to reiterate our procedures. All attendees are reminded of the long-standing parliamentary practice to the effect that members should not criticise or make charges against a person or entity by name or in such a manner as to make him, her or it identifiable, or otherwise engage in speech that might be regarded as damaging to the good name of the person or entity. Therefore, if their statements are potentially defamatory in regard to an identifiable person or entity, they will be directed to discontinue their remarks. For witnesses, in particular those attending remotely from a place outside of the Leinster House campus, they should be aware there are some additional limitations to parliamentary privilege. They would enjoy greater privilege were they able to participate in the meeting physically. Obviously, that is not possible for a variety of reasons. I ask them to be mindful that there may be some differentiation in the level of the immunity that they may enjoy in terms of parliamentary privilege as opposed to being in a position to be physically present. Finally, I ask all participants to strictly adhere to the subject matter rather than straying into other areas. We want to keep the discussion on topic.

The format of the meeting is that each organisation will be invited in the order in which I have introduced them to make an opening statement. Each organisation will have three minutes to do this. Once all the statements have been delivered, I will then go around the members and invite them to put questions to the witnesses. We have a procedure whereby each member is allocated seven minutes for the first round, including both the questions and responses. If time permits, we will facilitate a second round of questions. We will see how we go. Members may have other questions asked in the first round, or indeed, some other Members may join the meeting. I know that there is at least one Member who does not normally attend the committee and has indicated his wish to join the meeting later on, namely, Deputy McNamara. He is welcome to join the meeting, as is anyone else. Non-members will contribute to the meeting after committee members have asked their questions.

I invite Mr. Collins to make his opening statement to the committee. He has three minutes.

Mr. Bob Collins:

The 2015 legislation that established the Policing Authority was intended to make a difference, and it did. It created an independent, external oversight arrangement for the Garda Síochána where none had ever existed before. It created a greater structural distance between the Department and the organisation, and it created a distance between politics and policing. It was the settled view of the Government and Oireachtas that this was necessary. That was less than six years ago.

These heads of Bill, and the Commission on the Future of Policing report on which its approach is based, take a significant step back from that character of oversight. Repatriation to the Department and re-internalisation within the Garda Síochána have the potential to alter significantly the relationships between the Garda, the Department and the proposed new authority. There is, and there will be seen to be, an inescapable drawing back from those changes that were deemed so necessary just six years ago. Nowhere, in the commission report or in the heads of Bill, is there any significant or convincing argument why such a sharp shift is necessary or appropriate. There is much to welcome in the Bill. The joining together of the authority and the Inspectorate has the potential to be greatly beneficial both to the oversight and inspection roles. The authority also welcomes the changes made since the initial draft heads were first outlined last year. However, there continue to be issues that are of considerable concern to the authority, for example, returning responsibility to the Garda Síochána for determining the policing plan. The authority’s much reduced engagement will not be out of its own statutory capacity but at the invitation of the Commissioner. That is a significant shift of policy and practice and weakens oversight. What is its logic?

The same is true in respect of the Garda strategy. The termination of the authority’s role in appointments is a major change of direction. Apparently based on a wholly unfounded sense that the new arrangements would give the Commissioner a greater role in appointments, this shift flies in the face of the Garda culture audit and the widely felt unhappiness at recruitment practice within the organisation. This is a retrogressive move.

The weakening of the authority's role in the appointment of the Commissioner and Deputy Commissioner follows the same pattern. So does the return to the Commissioner, under some unspecified regulatory framework, of the recruitment of superintendents, a critically important role in the policing service. Why these steps, in respect of appointments, are being taken is, to put it mildly, unclear.

The role of the new Garda board seems to suggest that the Garda Síochána is no different from any other State body. Nothing could be further from the truth. It is precisely because the Garda Síochána is so wholly different in its role, duties and powers that a strong external oversight mechanism is necessary. The value to the organisation of outside expertise is not in question. However, what is virtually certain is the risk that the new structure will alter the nature of the current oversight, will cause confusion as to roles and responsibilities and have the potential to pose unnecessary difficulties for the Commissioner.

The authority worries that this Bill will convey the wrong messages about policing.

It will be seen as a backward step. It has the potential to slow and inhibit, rather than support and encourage, the programme of change to which the authority is committed and to which it knows the Commissioner is also committed.

If anything shows the importance of strong, independent external oversight, it can be seen in the authority’s handling of the homicide review and of the current issues with the cancellation and handling of 999 calls. The strength of that capacity should not be put in doubt.

James Lawless (Kildare North, Fianna Fail)
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I thank Mr. Collins for that. Next up is Chief Inspector Mark Toland who also has three minutes to make his opening presentation.

Mr. Mark Toland:

I thank the Chairperson for this opportunity to meet members of the committee. I will focus on three points, those of community safety, the functions of the new policing and community safety authority, PCSA, and the inspection function within that authority.

The Bill provides for a national strategy on community safety, which supports a previously made recommendation by the inspectorate. For multi-agency co-operation to be effective, there must be strong enabling legislation, accompanied by a recognition by relevant agencies of their role, a strategic commitment to meeting their responsibilities and, where necessary, providing appropriate levels of resources. Without this in place, community safety will remain as the responsibility of the Garda Síochána.

The community safety responsibilities of the PCSA are diluted from the role envisaged by the Commission on the Future of Policing in Ireland, which recommended that the PCSA promote inter-agency working and scrutinise the role of all agencies as they affect community safety. In addition, the PCSA will be limited to the functions of the Garda Síochána relating to the delivery of policing services. The PCSA will not be responsible for oversight of the delivery of security services, as is currently the case for the inspectorate. This will become the responsibility of the independent examiner who will also have oversight of the use of legal powers such as surveillance. While such powers are used to investigate crimes against the State, they are also used to investigate other offences, including serious and organised crime. It is important to ensure there are no gaps in oversight between the role of the independent examiner and the PCSA in this critical area.

The role of the Garda board to monitor implementation of organisational performance is similar to the objective of the PCSA. To avoid any confusion regarding objectives and functions, the roles of and relationships between the Garda Commissioner, the Garda board and the PCSA need to be further clarified.

While the inspectorate welcomes the power to allow PCSA inspectors of policing services to carry out unannounced visits to Garda stations, it should be set out in legislation and not be reliant on a memorandum of understanding. It is also important that provision is made in the legislation to ensure the PCSA is provided with all information and documents necessary to exercise its functions.

While provision is made for conducting joint inspections by prescribed bodies, the attachment of conditions on this taking place does not appear to be sufficiently strong enough to ensure that joint inspections will take place. Enabling the PCSA to publish reports of self-initiated inspections and monitor the implementation of recommendations arising from inspections will close two current gaps in inspectorate powers. The inspectorate believes inspection should be a core function of the new PCSA.

James Lawless (Kildare North, Fianna Fail)
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I thank Mr. Toland for that. I call Ms Ansbro, who also has three minutes to make her presentation.

Ms Doireann Ansbro:

The Irish Council for Civil Liberties, ICCL, thanks the committee for the opportunity to participate in today's hearing. In this statement we will summarise our key concerns with the policing, security and community safety Bill, as outlined in more detail in our two written submissions.

The ICCL welcomes the provisions for reformed police oversight mechanisms, which we regard as being broadly in line with recommendations of the Commission on the Future of Policing in Ireland. Robust oversight is crucial in order to ensure An Garda Síochána is complying with its human rights obligations and is held accountable to the people it serves. Provision for independent and effective investigations into complaints against police is a key human rights requirement on the State.

The ICCL recognises that a number of welcome reforms have taken place within An Garda Síochána. However, strong and effective oversight of policing is central to the police reform process. The Commission on the Future of Policing in Ireland was clear that reform of Irish policing is impossible without significant strengthening of our police oversight structures, including the provision of additional resources. The proposed establishment of a new policing and community safety authority, an independent examiner of security legislation, and a reformed Ombudsman are welcome. The increased references to human rights contained in the Bill compared with the 2005 Act are also encouraging.

We outlined eight recommendations in our first submission on how the Bill can be strengthened from a human rights perspective and today we will highlight four. The first recommendations is the Bill should remove all prosecutorial powers from An Garda Síochána. Both victims and accused persons have the right for their case to be prosecuted by an impartial legal professional. This was a key recommendation of the Commission on the Future of Policing in Ireland. The second recommendation is the Bill should include a provision on the mandatory collection of disaggregated data on policing and use of police powers. These data should be based on equality grounds, socio-economic status, geographic location and ethnicity. Such data collection is required under international human rights law. The third recommendation is that the Garda code of ethics should expressly include human rights standards. A breach of the code should constitute a disciplinary offence. The fourth recommendation is that while we welcome provisions for independent inspections of Garda stations, the ICCL calls on the Government to provide for wholly unannounced visits to Garda custody suites unconnected to a planned inspection. Independent visits to Garda stations and other places where people are deprived of their liberty are a crucial safeguard against abuse and are a requirement under the optional protocol to the UN convention against torture, which the Irish Government has signed but must ratify and implement as a matter of urgency.

The ICCL urges the Government to ensure that the oversight bodies foreseen by this legislation are properly resourced and given sufficient powers to ensure that proper reform is delivered.

James Lawless (Kildare North, Fianna Fail)
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I thank Ms Ansbro. I call Commissioner Harris, who now has the floor. He also has three minutes to make his opening statement.

Mr. Drew Harris:

Good evening Chairperson and committee members. I thank you for this opportunity to give evidence to the committee. Certainly after the publication of the Commission on the Future of Policing in Ireland report, An Garda Síochána accepted its recommendations in full. That remains the case. This has been followed by organisational commitment in implementing those recommendations under the Government’s A Policing Service for the Future reform programme. This has seen a large number of initiatives introduced by An Garda Síochána to improve the policing service we deliver to the public and provide additional supports for our personnel. For example, we have enhanced community policing as demonstrated during the Covid-19 pandemic. More than 820 gardaí have been redeployed from administrative roles to the front line Divisional protective services units are in place in every division staffed by more than 300 specialist gardaí. A new Garda anti-corruption unit has been introduced to promote the highest levels of integrity and professionalism within the organisation. We have had the establishment of a human rights unit and investment in human rights training across An Garda Síochána. An organisational redesign under the Garda operating model has continued throughout the Covid-19 pandemic.

For our people, we have introduced measures such as a more transparent promotion process, improved internal communications and additional health and well-being supports. These significant advances would not have been possible without the support of our personnel. An Garda Síochána fully supports accountability, oversight and the independent investigation of public complaints as a route to public confidence in policing. An Garda Síochána agrees with the commission’s view that Garda oversight should be streamlined, should not lead to micromanagement of the Commissioner by those oversight bodies, and should not impinge on the operational independence of the Commissioner. The commission also said that the Commissioner should be a true CEO in charge of all executive functions who would have the support of an internal board in carrying out those functions. However, what is proposed under the current wording of the Bill will see the introduction of a wide range of oversight structures and bodies with overlapping remits that will see the Commissioner of the day spending disproportionate time reporting and accounting to those bodies rather than actually overseeing policing, security matters, and the leadership and direction of An Garda Síochána. An example, under the proposed Bill, is that An Garda Síochána would be accountable for inter-agency co-operation to the new policing and community safety authority, yet the other State agencies involved would be reporting to the new national community safety steering group, to which we will also report.

The Bill, as proposed, will effectively outsource many of those levers of control in key areas such as the budget, discipline, standards and policing operations from the Commissioner to different oversight bodies - in effect, the micromanagement and erosion of operational independence that the Commission strongly warned against. It also gives the replacement for the Garda Síochána Ombudsman Commission, GSOC, more legal powers to conduct investigations into Garda personnel, including Garda staff, which gardaí investigating crime currently enjoy.

Investigations by the new GSOC could run on for long periods without any obligation for them to inform the Garda or employer about the nature of what they are being investigated for and whether it is criminal, misconduct or civil. This would appear to be in breach of an individual's human rights as well as being incredibly stressful for them. Furthermore, I as Garda Commissioner and the employer may not be made immediately aware of investigations related to serious matters. My management team and I have met with the Minister for Justice and senior Department officials to discuss our concerns, as detailed in our 75-page submission to the committee, and those discussions have been productive.

To conclude, the recommendations of the Commission on the Future of Policing were necessary, timely, and have already benefited the people of this country in terms of the policing service provided. What we are asking is that the proposed Bill more accurately reflects the commission’s recommendations so An Garda Síochána can continue to operate ethically, efficiently, and effectively to keep the people safe.

James Lawless (Kildare North, Fianna Fail)
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I invite members to contribute in the order in which they have indicated. Senator Ruane indicated to me at the outset and she will be followed by Deputy Kenny. She has seven minutes for both her questions and the witnesses' responses.

Lynn Ruane (Independent)
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I thank everybody for their submissions and their time today. I only have a short time so I will get straight into the questions. It would be great if the answers were straight to the point, where possible, just so I can get through them.

The first question is for the Mr. Harris. It relates to head 30. Has the Commissioner any concerns about head 30 and how the written directives from the Minister could affect a Commissioner's operational or independent control?

Mr. Drew Harris:

I would set that in the context of the many other means by which direction and control of An Garda Síochána could, in effect, be impinged upon. We have the policing priorities, the security priorities determined by the Minister, the approval of the strategic plan, the annual plan and then the other plans that flow on from that. Furthermore, I am accountable to the Garda board for my performance and then also accountable to the new authority for the performance of the organisation. In respect of head 30, this is issuing a directive to the Commissioner with the consent of Government but that must be a lawful directive and one that obviously meets our obligations on human rights compliance. If that was not the case, obviously I would make comment in that respect. There just seems to be an awful lot of influence being brought to bear. One of the concerns is the amount of influence being brought to bear in terms of three-year, one-year and then more extraordinary matters in terms of my direction and control of the organisation.

Lynn Ruane (Independent)
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I thank Mr. Harris. He spoke a little about the accountability structures and who he is accountable to. Has he any concerns about the confusion within those accountability structures in some parts of the Bill and how that might affect his work? I am thinking of heads 11, 23 and 28, which all state the Commissioner is not accountable to the board whereas head 25 states he or she is. Does Mr. Harris have any concerns about who he is accountable to?

Mr. Drew Harris:

In truth, I am unclear as to who I am accountable to. The board, in effect, assesses my performance so that makes me subservient to that board because it is assessing my performance on an annual basis. I also have a responsibility to the authority in terms of the performance of the organisation and then I have responsibilities to the Minister as well. Thus in effect I have a number of different bosses. I am also reporting in to the national community safety steering group. I have concerns, which are reflected in our submission, over how we deconflict this and the amount of time I am going to spend dealing with accountability bodies. That is dysfunctional in terms of leading an organisation of this scale and complexity and the complexity of the demand we are dealing with as well.

Lynn Ruane (Independent)
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I thank Mr. Harris. I also have a question for the Policing Authority. Do its members believe there is the need for the creation of an internal board, as provided for in this Bill?

Mr. Bob Collins:

The authority does not favour the board as it is represented in the Bill. As I said, the authority sees real value to the Commissioner and An Garda Síochána in having external expertise. That is the kind of arrangement envisaged in 2005 Act but was never acted upon. That was 16 years ago. The Commissioner has made some reference to it but from the authority's perspective the risk is there will be a confusion of interlocking engagements. If the Commissioner has uncertainty as to whom he is accountable, there will also be uncertainty as to who ultimately is responsible for some of the elements. There is a difference between accountability and giving account. There is a risk the internal board, the Garda board, will have an oversight role that either duplicates or gets in the way of the oversight role of the proposed new PCSA. As I said, there is value in having external expertise available to the Commissioner across a range of areas. The authority has identified a number of those areas which are significant for the life of the organisation and which are essential to its effective performance and are not just back-office or administrative issues. They are crucially, critically, central to the quality of the policing service. That value is unquestioned. It is about the interposition of that board and the potential dilution of the clarity of the oversight.

My final comment on this is the authority from its inception has made it absolutely clear it does not want An Garda Síochána to create material simply for our existence. It is giving the authority access to material that is already there. There has never been a suggestion that the authority wanted to be part of the executive management of An Garda Síochána, let alone micromanage it. That is not our role. I do not think anybody could point to any instance in which that has happened. The board has a real value but there are real risks in the way it is constituted in the heads.

Lynn Ruane (Independent)
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I thank Mr. Collins. I have a question for the ICCL. It relates to the provisions on prosecution by An Garda Síochána. The Commission on the Future of Policing in Ireland's recommended that the Garda should not have a role in prosecution. What does the ICCL feel are the implications of this?

Ms Doireann Ansbro:

This has been a long-standing criticism by the ICCL and some international human rights bodies of the role of An Garda Síochána. Part of the right to a fair trial is to be represented by a legal expert. We are concerned that even though this was a very clear recommendation by the Commission on the Future of Policing in Ireland, we now have the old system replicated in this legislation, whereas the Bill provides the opportunity to move forward in line with the commission's recommendations. Clearly, there are resource implications and to provide for sufficient numbers of prosecutors in the country, resources will need to be allocated to the DPP and the hiring of new prosecutors to replace the functions of An Garda Síochána at present. It is in line with that general recommendation by the Commission on the Future of Policing in Ireland to remove non-policing functions from An Garda Síochána. We think this is a missed opportunity to emphasise and ensure the right of people to have a legal expert representing them is fulfilled.

Lynn Ruane (Independent)
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I thank everyone for their answers. They are much appreciated.

Martin Kenny (Sligo-Leitrim, Sinn Fein)
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I thank the witnesses for attending and for their opening statements. I wish to address a couple of comments Mr. Collins made in his statement.

Mr. Collins seems to make the point that there is a concern that this is moving away from reforms that were clearly necessary and appropriate in the past. He indicates a sense that some of the matters that were very concerning for many people regarding how the Garda was run and managed in the past had been dealt with to some extent through the establishment of external bodies and oversight but that some of that has now been pulled back. I would like a little more detail and to tease out exactly where the witness feels that is happening. Does he feel when the board is established it will be much less independent than it would have been in the past?

Mr. Bob Collins:

I made a point about the existence of the board. That is not the only issue that concerns the authority and where it saw a shifting back from the position established just over six years ago. A range of responsibilities returned to the Minister. We were very pleased to see the setting of the priorities that was going to be with the Minister in the initial draft heads is now going to be with the new authority, as it is with the current authority. It is a very positive development and we welcomed it. The setting of those priorities is done in close consultation with the Garda Commissioner, as the law requires, and it always has been. There has not been an instance, either in the setting of priorities or the approval of the policing plan, where there has been a significant difference between the authority and the Garda Commissioner.

The return to the Garda Síochána family, as it were, which includes the new board and which will adopt the services plan or the policing plan, as it is called, is a step backwards. The authority has always been strongly of the view that the policing plan must be the Garda Commissioner's plan and he or she must own it. The entire organisation must own it. The fact that the authority approves it currently is a really significant element because the authority brings to that process all its engagements across the community, including outreach. There is very significant evidence, for example, during the past 18 or 20 months of the Covid-19 pandemic and the 15 reports that the authority has submitted to the Minister on the policing of that. There have been very positive responses from the public to the authority on the quality of that policing service. That element runs the risk of being absent from the shaping of the new services plan.

As I am on the topic of the services plan, there is a provision in it that merits further serious consideration. It relates to the final subhead in the part, which indicates the services plan must align with the policy of the Government or of any Minister of the Government and his or her views on policing. It is difficult to understand that and it has the potential to be problematic for the independence of any Garda Commissioner in setting the policing plan.

To get back to the point, it is proposed the board will adopt that plan but it is not clear what exactly is the difference between "adopt", "approve", "accept" or whatever it may be. The appointments are a critical matter. Moving the appointments from the Garda Síochána to the independent oversight body was not an invasion of the executive management space of the Garda Commissioner because the Garda Commissioner had the capacity, either personally or through a representative, to be involved with every selection process that was undertaken. The current Garda Commissioner has been involved with the selection of deputy and assistant commissioners, as well as chief superintendents. That is really positive.

The critical point is that there was a serious reservation within the organisation about the appropriateness of recruitment policies and the independence of recruitment practices. That was reflected very significantly in the culture. The response to the authority over the past four or five years in which it has had this responsibility is welcome for the fact this external body was engaged. There is a virtue in having the authority as opposed to the Public Appointments Service involved. My comments are not in the slightest sense to cast any aspersions or doubts on the professionalism of that important agency. The authority, by virtue of its various responsibilities, has access to understanding the information because of its statutory entitlements and powers that would not be readily available to any other agency involved with the appointments process. That really shifts the balance towards the Garda Síochána as an entity.

This is not about any individual Garda Commissioner or officer, and I have no doubt the people in question know that. This is about the structural relationships between the policing service as an entity and whatever oversight body exists. We all know there will be an oversight body. The Garda Commissioner knows this from his previous experience in another jurisdiction of an oversight body with a far more significant capacity that this authority. The virtue and value of that has been appreciated by the chief constables of the Policing Service of Northern Ireland.

Martin Kenny (Sligo-Leitrim, Sinn Fein)
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I share the concerns outlined by Mr. Collins. Does he believe those concerns can be addressed successfully in this proposed legislation in order to relieve those pressures?

Mr. Bob Collins:

There is no concern that the authority has that cannot be very easily provided for through relatively easy amendments to the heads as they currently stand. I do not want people to take away from our comments that we do not see this proposed Bill as being very significant and positive in very many respects for the community as a whole. We might come to that element later.

There are a number of specific matters where problems can be pretty readily addressed, even within the framework the Government appears to want to have in the overall architecture. Minor adjustments would make significant real, psychological and perceptual differences. We worry that people will think that this would be seen as moving back from a position that was seen as so very necessary less than six years ago, as I mentioned.

Patrick Costello (Dublin South Central, Green Party)
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At the outset I agree with some of the concerns voiced by Senator Ruane related to some contradictions in the terms relating to independence, action from and accountability to various boards and Ministers, along with the independence of the Garda Commissioner. There is a contradictory mess across some of those heads.

I ask Garda Commissioner Harris about prosecution powers. As somebody whose sergeants and inspectors are front-line management, essentially, spending days in courtrooms managing cases, does he share the views on prosecution powers and the appropriateness of the use of those front-line managers in court?

Mr. Drew Harris:

I thank the Deputy but I will ask my colleague to take that question.

Ms Anne Marie McMahon:

I know this matter has been raised a couple of times already this evening. For the information of everybody, there is a high-level group sitting to address this very matter and deal with the recommendation as set out in the Commission on the Future of Policing in Ireland report. That group was established by the Department of Justice, with an independent chair, comprising a cross-section of stakeholders. There is a considerable amount of work being done with international research and stakeholder engagement. That work is very much continuing and seeks to address the very recommendation spoken of by the Deputy.

At the moment we are working our way through it and we will await the outcome of the working group findings.

Patrick Costello (Dublin South Central, Green Party)
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I would like to come to the Policing Authority now. When we discuss accountability and oversight, one of aspects I am conscious of is something that I am not sure has been taken into account in drafting this Bill. Some years ago the Department of Public Expenditure and Reform defined accountability in public service as: "The formal obligation to submit to a mechanism designed to achieve external scrutiny in explaining and justifying past conduct or actions with the possibility of consequences arising." I am interested to hear the Policing Authority's views on that definition, how this proposed Bill matches up to that and how the authority's current work matches up to that definition of external scrutiny explaining and justifying past conduct or actions.

Mr. Bob Collins:

I made reference in the opening remarks to the homicide review that was undertaken a number of years ago, and to the current work being undertaken in considering the developments with regard to 999 calls, the unwarranted cancellation of some of those, and the way in which they are handled generally. In some respects that is accounting for past actions, even though they are very recent past actions. That is a critically important part of the work of a body such as the Policing Authority. To be perfectly honest, and without disrespect to anybody, I do not believe that in the absence of an external body such as the Policing Authority, that depth of information would ever have become available, or it certainly would not have become available within the timescale that it did, and in the way it has.

The question around the person or the body to whom the Commissioner is individually accountable for his or her actions, could be debated at some considerable length. It is not the most significant issue, in my book, but it is not without significance. What is really critical is the continuing possibility of the Commissioner and his or her colleagues having to give public account. That is in the new Bill, and that will be true for the Policing and Community Safety Authority, PCSA, as it is for the current Policing Authority. I do not want, in the slightest sense, to diminish the continuity element in these draft heads of the Bill. This will continue to be a significant part of the public giving of account in relation to the activities of the organisation. One could spend a lot of time debating precise definitions and I would prefer to root them in individual examples rather than in informal definitions.

Patrick Costello (Dublin South Central, Green Party)
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From what Mr. Collins has said, the key elements are that the accountability is public, that there is transparency, and certainly that it is something external to An Garda Síochána.

Mr. Bob Collins:

External, independent, strong, statutorily supported and public are the crucial elements in accountability. Some of those elements are there at the moment and some could be stronger. Some of those I believe run the risk of being somewhat weakened in the new arrangements. Because of the establishment of a Garda board, the Commissioner is undoubtedly going to have to engage with the board and answer its questions and indeed engage with its issues. It seems unreasonable that a commissioner would do it twice. There is a risk therefore that this would diminish the extent to which those engagements would be properly and fully held with the Policing Authority. There is a risk that Garda board, with its fiduciary responsibilities to the organisation, will want to protect jealously its own area of statutory responsibility, and there may be an emerging reluctance to engage with the kind of increasing openness that has been evident from An Garda Síochána, with some notable exceptions, over the past five to six years.

Patrick Costello (Dublin South Central, Green Party)
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To be clear, does Mr. Collins feel that the board meets that criteria that he has set out there to be public, external, strong, and statutorily supported?

Mr. Bob Collins:

In many respects, yes. In some critical respects, however, I believe that it would be stronger and more effective. I have identified for example its involvement in the development of the services plan. This is the Commissioner's plan but at the moment it approves that plan in such a way that it can introduce into that conversation its experience of the public accountability and its experience of the engagement it has with the community, its outreach, and its engagement right across the State throughout the year. That lived experience of policing is an important element to be introduced into the shaping of the plan. There is a real risk that this will be significantly diminished under the new arrangements. I am not sure if that was the intention of the Commission on the Future of Policing in Ireland. It would be odd if it were. A view seems to have been developed by the commission that in some way the existence of the Policing Authority impinged upon the managerial and executive independence of the Commissioner. It was not so and cannot be so. Nothing can be pointed to indicating that it could ever be so. Therein I see a risk.

Robbie Gallagher (Fianna Fail)
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I welcome all our guests here this afternoon to discuss this very important proposed legislation.

I will start if I may with the Garda Commissioner, but I direct the question also to the representative from the Policing Authority. It would appear to someone looking in on this that there seems to be quite a wide range of bodies tasked with overseeing the activity of An Garda Síochána from the Garda Commissioner, the Garda Síochána Inspectorate, the Policing Authority and An Garda Síochána Ombudsman Commission. I wonder what the is potential to amalgamate some of these organisations.

The starting point of everybody here is robust oversight and accountability. That is key. There seems to be a disparity between all contributors. Everyone wants to reach that destination but there appears to be wide-ranging opinions as to how we get there. What is the Garda Commissioner's opinion on this? What is the opinion of representative from the Policing Authority and others who want to comment on the potential to amalgamate some of the existing bodies, and what effect would this have on the organisations?

Mr. Drew Harris:

I will take that question first. There is an issue that head 11 and head 104 are replications of each other. Head 11 says that the Garda board is said to be responsible for monitoring organisational performance, while head 104 says that the Policing Authority keeps under review the performance of An Garda Síochána functions. As the chair of the Policing Authority has already suggested, there is a role for a Garda board as a support in terms of internal management governance and expertise to me as the Commissioner and to the senior team in dealing with a very complex organisation. We have an effective dual employment model with regard to Garda staff and Garda members. We are the sole policing service for Ireland, and we have a wide range of responsibilities including, almost uniquely, national security responsibilities. The board would be a valuable addition for our management and organisational effectiveness. The difficulty is, however, and I believe that the chairman and I are not very divergent in our views here, that when the new authority is assessing the performance of An Garda Síochána's functions, is the board assessing my performance or that of the board and the decisions it has made? Within this, it starts to actually dilute. If the responsibility does not lie with me then authority seeps away from me in terms of the changes and driving the formal and operational agendas within the organisation.

Obviously, we too understand that public confidence is wrapped up in our accountability mechanism. We are supportive of an accountability mechanism. We are supportive of the public accountability mechanism and we recognise that we are very different from every other public body in the State in having a very regular public accountability exercise with both the authority and Oireachtas committees. However, I think there is confusion as to who is looking after what here between the board and the authority, and that could be clarified. As the chair of the authority said, I am not sure that that would be that difficult within even the heads as they are written.

Robbie Gallagher (Fianna Fail)
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I thank Commissioner Harris. Do any other panel members have a comment to make on that?

Mr. Bob Collins:

It might be unseemly if the chair of the Policing Authority and the Commissioner of the Garda Síochána were to agree too frequently on too many things, but, as the Commissioner said, we are not 1 million miles apart on this issue because the same considerations probably in different ways apply to both of us. We are at opposite ends of the same Christmas cracker; the question is who will get the hat. I think some of those issues can be relatively easily resolved within the architecture. There were two other elements in respect of which the authority felt there was perhaps an imbalance in the way the focus was on the Garda Síochána. We may come to community safety. It is a critical part of the Bill and tends to be but should not be overlooked. This makes very clear arrangements for the way in which the Garda Síochána will be held to account in respect of its engagement with community safety. As everybody recognises, however, this is a shared responsibility, and it is not altogether clear - perhaps it will be reflected in other legislation - that a similarly focused arrangement will emerge whereby the other relevant public institutions will have the same level of scrutiny or be held to account to the same extent as the Garda Síochána is.

The second concern we had - again, lest we not come to it otherwise - is that, while we do not have a huge amount to say about the arrangements for the proposed office of the Garda ombudsman, there is a genuine concern that the issue of incidents of concern and the need to report virtually all of them to the proposed office of the Garda ombudsman may diminish the emerging acceptance of the notion of performance management within the organisation which, undoubtedly, the Commissioner and his senior colleagues wish to see become the norm and widespread. If everything about which the Commissioner has a concern has to be referred externally, it may give the impression that there is little that can be done internally. That will not be the case, but perceptions can be very powerful in this respect. As for the existence of a board, a board could be tremendously powerful and useful to the Commissioner in respect of a whole range of things but I think they could be dealt with relatively simply in order that there is greater clarity for everybody concerned.

James Lawless (Kildare North, Fianna Fail)
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I now move to-----

Robbie Gallagher (Fianna Fail)
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Chair, I do not know how I am fixed for time.

James Lawless (Kildare North, Fianna Fail)
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You are out of time, Senator, unfortunately, unless you wish to make a brief comment. I can take you again during the second round, of course, as well-----

Robbie Gallagher (Fianna Fail)
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That is fine. No problem. Go raibh maith agat. Táim ceart go leor.

Pa Daly (Kerry, Sinn Fein)
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I have one or two questions for Ms Ansbro to start. One of the ICCL's recommendations is to remove all prosecutorial powers from An Garda Síochána. Does that include the decision whether or not to prosecute and consideration of the evidence in a case? Does the ICCL mean all the way down to the District Court, that is, that all District Court offences would be prosecuted by, say, somebody from a local State Solicitor's office?

Ms Doireann Ansbro:

Yes, that is precisely what we mean. We consider that both the decision to prosecute and the actual carrying out of the prosecution should be transferred to the Office of the Director of Public Prosecutions, DPP, in all cases and for all prosecutions, and we mean to include all cases at the District Court level as well.

Pa Daly (Kerry, Sinn Fein)
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I have two or three questions for Commissioner Harris. I have heard what he said. I think it was Mr. Collins who referred to the Commissioner's experience in another jurisdiction, namely, the North. What can we learn from policing oversight in the Six Counties? Did Commissioner Harris notice a difference in the culture or in prosecuting? Does he think the ICCL's suggestion to remove all prosecutorial powers from An Garda Síochána might be a good idea to free up gardaí for policing work?

Mr. Drew Harris:

I have experience working with the policing board in Belfast and I was the chief officer in the PSNI from 2006 to 2018. I attended some 97 public meetings with the policing board so I am well versed in and well used to both a policing board and an ombudsman and how they work and how sensitive they are to public confidence. I have learnt that there is always a degree of tension between the executive of a policing organisation and its oversight body, and that is a good thing. Steel sharpens steel. We need to have vigorous and rigorous debate about our policing functions, making sure, therefore, that we are doing that which promotes public confidence and that which is seen to be legitimate in the eyes of the public. All of that is what we seek to achieve by our engagement with the authority. The authority, as its chair said, is on the other side of that continuum and conversation with us.

I have mixed opinions on the prosecution of offences in the District Court. I understand entirely the principle that has been set out. It is probably more achievable in our bigger towns and cities. At the same time there is something which maintains our skills, including our investigative skills and the quality of our local investigative work. When people know they have to go along and either they or their immediate supervisor will present the cases they prepare, there is a real connection between the quality of the work and they then see the immediate impact of that in a court appearance. That is also a good grounding for moving on into more serious crime investigation and being very familiar with court processes. There is, therefore, a downside and a skills fade when a policing organisation no longer takes on those prosecutions. I understand the point the commission made and I know that work is being done but, at the same time, a huge resource would be required to conduct that function right across Ireland.

Pa Daly (Kerry, Sinn Fein)
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I asked about the difference in the culture between the North and this jurisdiction. Commissioner Harris mentioned in his opening statement investigations by GSOC going on for years without any obligation to inform Garda employees. It is kind of similar to some of the debate that has come from the mid-west area recently in that investigations are going along for a long time. Given some of the recent controversy, does Commissioner Harris think there has been a difference in the culture and in discretion between the North and the South?

Mr. Drew Harris:

I cannot go anywhere near matters from the mid-west because those matters are before the courts and it would be entirely inappropriate for me to comment further on them. Stepping back, however, the general point about discretion is that it is an element which is taught to our trainee gardaí. We have issued instruction on the proper exercise of discretion. Discretion is appropriate whenever gardaí are dealing with members of the public. There are various stages in respect of that discretion such as dealing with individuals through a juvenile liaison scheme or via a fixed charge penalty notice if appropriate. There are a variety of disposals for gardaí to action at the side of the road. It may be just a simple word of advice and a warning. All of that is appropriate in the circumstances in which gardaí find themselves.

I will repeat the comments I made on Monday. Discretion is entirely different from exercising preference and preference has no part in providing a policing service. Preference is wrong if individuals are treated differently. That should not be the case.

Pa Daly (Kerry, Sinn Fein)
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I have a final question for the Garda Inspectorate. On the replacement for GSOC and giving it more powers to conduct investigations into Garda personnel, the Garda Commissioner expressed concerns about possible breaches of human rights that could be disproportionate, unconstitutional and unable to withstand a test in the courts. What is the inspectorate's view on that?

Mr. Mark Toland:

I would not like to answer on behalf of GSOC but I would say that in our submission, we acknowledged that the Commissioner intends in the long term to, hopefully, replace gardaí at the front counter of Garda stations with Garda staff to free up gardaí for patrol. Our comment is around reception of complaints and that a member of Garda staff would be able to receive complaints. We do not comment on the wider issue of where the Garda staff are employed and by whom. Our comment was to the effect that a member of Garda staff would be in a position to receive a complaint from a member of the public at the front counter of a station so that a police officer would not have to come back in and deal with that issue.

Along with the ICCL, we are responsible for making a recommendation about moving the prosecutorial function from the Garda Síochána to the Director of Public Prosecutions. We made that recommendation in 2015. It was very much about separating investigation from prosecution and freeing up Garda members who are fulfilling a role in courts. Most other jurisdictions have moved away from police officers prosecuting as well as investigating offences.

Thomas Pringle (Donegal, Independent)
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There is a reference in the ICCL's report to the issues we have been discussing with the Garda and the Policing Authority in terms of the growth of oversight bodes and interaction with them. Can that be dealt with in this legislation and, if so, how? That is important. Years ago, we had no oversight but we are now going to have so much oversight that there will be confusion about who is responsible for what, the effect of which is that there may be no oversight at all in the future. Can the legislation be amended to counter that possibility?

In its submission, the ICCL recommends including a reference to the human rights standards expected of Garda members and staff and their practical application as part of the code of ethics, and ensuring the code of ethics can be enforced by making a breach a disciplinary offence. Can that be done as part of this legislation? History has taught us it should be done. That is vitally important. There have been problems in recent times with the lack of reporting of human rights issues within the Garda because it is not required. Can those changes be included in this legislation? Where would they fit in?

James Lawless (Kildare North, Fianna Fail)
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Does the Deputy wish any of our guests in particular to reply?

Thomas Pringle (Donegal, Independent)
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That question was intended for the ICCL.

Ms Doireann Ansbro:

That was one of our recommendations. We recommended that when we made our submission to the Commission on the Future of Policing in Ireland and we also have made submissions on this legislation. It is about making human rights standards real and tangible and having the possibility of identifying a human rights breach that may not reach the threshold of criminality but has an effect on an individual nonetheless. It is not just about identifying such a breach; there must be some kind of accountability and repercussions for it. That is where our view comes from in terms of including human rights in the code of ethics and making a breach of the code of ethics a disciplinary matter.

Thomas Pringle (Donegal, Independent)
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How does Ms Ansbro feel the issue of oversight bodies can be dealt with or can it be dealt with in this legislation?

Ms Doireann Ansbro:

I missed the question about oversight bodies. Would the Deputy repeat it?

Thomas Pringle (Donegal, Independent)
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There is an increasing number of oversight bodies, which will lead to confusion as to what people's roles and responsibilities are. That could end up having the effect of providing no oversight. Can that be sorted out in the proposed legislation?

Ms Doireann Ansbro:

It can be sorted out. There is obviously a degree of confusion about who is answerable to which body. There is also confusion around the board and the new authority. There is potential overlap there. From our perspective, we are not entirely opposed to the creation of a board but is functions should be limited to supporting internal management. The excellent oversight that has been provided by the Policing Authority in recent years must continue. That means it must have sufficient powers to engage with the Garda Commissioner and there must be sufficient transparency in the policies and procedures of An Garda Síochána.

We have not spoken much about the new Garda ombudsman today but we view it as positive that its powers are being expanded. The Commission on the Future of Policing in Ireland identified a lack of resourcing and staffing as hampering the work of the ombudsman, along with the problem of its insufficient powers. Increased powers for a new ombudsman are something we welcome.

The Deputy asked about the types of complaints being referred to the new ombudsman. We think there should be an expansion of complaints that can go to the ombudsman, particularly in respect of human rights violations, but also violations that do not reach the threshold set down in the 2005 Act. They should then be investigated by the ombudsman. We believe it is vitally important that the new ombudsman is given greater powers and resources, considering the need has been identified not only by the Commission on the Future of Policing in Ireland but also by international bodies. The UN Committee against Torture, in its most recent report to Ireland, recommended a strengthening of the powers of the Garda ombudsman. We foresee distinct roles for the new authority body, the ombudsman and, potentially, a board. We definitely think it can be worked out. Of course, this is a good opportunity for people to express their views and come up with solutions.

Michael McNamara (Clare, Independent)
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I want to focus on head 29 of the Bill, which states that the Garda Commissioner shall keep the Minister and the Secretary General of the Department of Justice informed of matters relating to significant developments concerning the preservation of peace and public order in the State, the protection of life and property in the State and the protection of the security of the State; significant developments that may reasonably be expected to affect adversely public confidence in An Garda Síochána; matters relevant to the accountability of the Government to the Houses of the Oireachtas; and any other matters that, in the Commissioner's opinion, should be brought to the Minister's attention. That provision very closely mirrors the existing Garda Síochána Act, section 41 of which provides for pretty much the same thing, including any other matters that, in the Commissioner's opinion, should be brought to the Minister's attention.

In the past, that has given rise to some political controversy. The Chair may recall that when the former Deputy, Alan Shatter, was Minister for Justice and Equality, he received information from Commissioner Callinan about Mick Wallace and a road traffic offence at the Five Lamps in Dublin, which was deemed to be pretty close to political policing. The specific question that I have relates to an incident in August 2020, when the then EU Commissioner, Phil Hogan, was cautioned for using a mobile phone while driving at the time that he was having a bit of a dispute with the Government. He was not caught with a bag of Kalashnikovs in the boot. There was no great threat to State security or anything like that. He was caught with a mobile phone in his hand. We were subsequently told that the Commissioner brought this to the attention of the Minister for justice. She brought it to Cabinet and the Cabinet duly used it to get rid of a Commissioner that they were under political pressure to get rid of to save their own hides. Of course, every offence is potentially serious. Receiving a caution for using a mobile phone while driving is not the most serious criminal offence and certainly is not the most serious road traffic offence. On what basis did the Commission form the opinion that this information should be brought to the attention of the Minister for justice?

Mr. Drew Harris:

I am afraid that I do not enjoy the same privilege in being able to answer the question that Deputy McNamara enjoys in asking the question of me. One of the principles of the section 41 reports to the Minister is that only the Minister can make a decision in terms of the publication of such a report. That is contained in the current legislation and, in effect, explicitly prevents me from talking about or going into any detail on such reports. That question is beyond my remit, in these circumstances, to answer.

Michael McNamara (Clare, Independent)
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I would make the point that subsection (4) of the Act states that the Minister may publish all or part of a report submitted under the section. I am lost as to where it states that the Commissioner cannot answer a question asked at a meeting of a Dáil committee on the submission of reports in that regard. If the Commissioner cannot point to a particular-----

James Lawless (Kildare North, Fianna Fail)
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Sorry, Deputy, I think the point the Commissioner has made, and it is one that I outlined at the start of the meeting, is that unfortunately, due to the hybrid nature of the proceedings, witnesses do not enjoy full parliamentary privilege as they would if they were physically present, which is a limitation of our current environment, but it is where we are. I think the Commissioner could possibly answer the question in an abstract fashion, if not in a specific fashion. Indeed, any specific incident would be outside the remit of the deliberations today, but perhaps the question could be resubmitted in a more abstract way.

Michael McNamara (Clare, Independent)
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Given the unfortunate situation whereby the Commissioner is not physically present, it may be that he will be here at some point in the next few years and we can ask him the same question again when he enjoys full parliamentary privilege. However, I do not think that is what the Commissioner was referring to. In any event, does the Commissioner have concerns that this ability to provide information could lead him into very murky water in that there is a very thin line between providing information that could be relevant and engaging in political policing? Of course, the rule of law is a big issue at the moment. We, in Ireland, are very critical of Poland for breaches of the rule of law and we are very careful to safeguard the rule of law here. We like to lecture other states about political policing. Does the Commissioner think that more detail in the legislation on what should be brought to the Minster's attention might be beneficial ? Obviously, matters pertaining to the preservation of peace and public order, the protection of life and property and the protection of the security of the State should be brought to the Minister's attention. I am not saying the Commissioner did, or would do, so, but this omnibus thing would enable future commissioners to basically provide sensitive, private information about somebody that a member of the Government is in a political dispute with. It is more Zimbabwe than Phoenix Park, but we can never take anything for granted.

Mr. Drew Harris:

The Deputy is correct to say that we abide entirely by the rule of law, and the rule of law as it applies in the 2005 Act and the section 41 referrals. In the abstract, this power is used in conjunction with our responsibilities under section 7 of the Garda Síochána Act 2005 and is connected to our policing functions. Anything which is provided to the Minister is in respect of our policing and security functions and not, in any form, gossip, tittle-tattle or anything used remotely to gain a political advantage. I can give the Deputy a full assurance in respect of that. It is tied closely to our policing function.

James Lawless (Kildare North, Fianna Fail)
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That concludes the seven-minute slot for Deputy McNamara.

I will move to the next round of questions. So far, two members have indicated that they wish to come in a second time. First is Senator Ruane, followed by Senator Gallagher. If other members wish to contribute again, they are welcome to do so. I will take them in the order in which they indicate they wish to contribute. This round is shorter. Each contributor has four minutes.

Lynn Ruane (Independent)
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As regards some of the conversation around what is and what is not referred to GSOC, the word "performance" has been used. Obviously, referrals are made in respect of, for example, human rights and disciplinary matters. We are separating those things in relation to when we decide who investigates what. So, when it comes to an issue of a more disciplinary nature, it would not make sense for An Garda Síochána to investigate itself. What is actually meant by "performance"? Are we just talking about performance in the sense of people's personal performance in their job, not in how they carry out that job in terms of the public aspect of the job, but in relation to issues such as turning up late or not having a good attitude? I am not sure what is meant by "performance". Is discussion of "performance" different to when we talk about an issue of a disciplinary nature or one that is grounded in equality? Perhaps the representatives from the ICCL and Chief Inspector Toland could respond to that.

Ms Doireann Ansbro:

From our perspective, obviously, one can separate performance issues like turning up on time from a human rights violation. Certainly, it is the latter that should be investigated by the ombudsman. We consider it very important to ensure that what is covered by the ombudsman includes any allegations of ill treatment, for example, of an individual, where it reaches a threshold of not just serious harm which, essentially, is what the 2005 Act mandates an investigation into currently, but even an excessive use of force which may not end up causing serious harm, because it is still a disproportionate use of force. For us, it should very much be rooted in everything from what one might call the lower threshold of human rights violation to serious criminality. When one is talking about performance issues regarding turning up on time, that is not something that we think should be in the remit of an ombudsman. I would be interested to hear from others on the point.

James Lawless (Kildare North, Fianna Fail)
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Does someone else want to comment on that?

Lynn Ruane (Independent)
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Perhaps Mr. Toland could comment on that. While he is commenting on that point, he might also address the issue of there appearing to be some resistance to the word "Garda" being in the title of the proposed new Garda ombudsman. Are there implications for some communities if the word “Garda” is contained in the title? If so, should we be calling this body something else so that we can encourage and empower people to engage with it?

Mr. Mark Toland:

The Senator may have left the House, but I repeat that I cannot answer questions on behalf of GSOC. I can say that we recently wrote and published a report about trying to prevent internal corruption in An Garda Síochána. One of the things we were pleased to see in that context was a clarification concerning what is “serious harm”. Those are the types of cases that the Commissioner refers on now. One of our recommendations was that sexual offences and abuse of power for sexual gain offences are the sorts of notifications that the Commissioner should make. I cannot comment on the performance issue because that is not within my remit and GSOC will have its own view in that regard. I am sure the Commissioner will also have a view regarding performance issues and how difficult enforcement might be in that context.

James Lawless (Kildare North, Fianna Fail)
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I thank Mr. Toland. The Commissioner has indicated, if he would like to respond briefly to that query as well.

Mr. Drew Harris:

A case involving a breach or infringement of human rights would always be a serious matter and one which would properly belong with the ombudsman.

Turning to performance issues, we have this single strand in respect of dealing with misconduct and performance. It is an elongated disciplinary process. We could do better with far faster engagement with individuals regarding their performance. That could include the aspects mentioned already, but it could also include matters such as poor investigation, the late submission of files or, indeed, being rude or discourteous to a member of the public. Some of those would be public complaints and we would have to work through with the ombudsman how that office would refer such complaints to us in respect of performance issues being involved. We must ensure, however, that the ombudsman is dealing with the serious cases and not with matters which can be more relevantly engaged with by local management and dealt with quickly at that level. That would then leave the ombudsman clear to deal with crime and serious matters.

We would always say that we regard an infringement of someone’s individual human rights as a serious matter. We take human rights incredibly seriously. We have built it into our Garda decision-making model and that is a feature of training throughout the organisation. We have made huge efforts and deployed a great deal of resources into developing a culture of human rights. Therefore, I do not think there is much pushback from us on this issue. In fact, we are supportive of it. At the same time, however, I want to have a performance management system which has some teeth and that allows us, in cases where constant poor performance is demonstrated, to exit those individuals from the organisation because they are incapable of fulfilling their roles. I hope that provides some clarity in respect of poor performance being dealt with as a management function by managers and supervisors within An Garda Síochána, as opposed to instances of more serious misconduct and criminal matters.

Lynn Ruane (Independent)
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I thank the Commissioner and his answer does provide clarity. I do not agree at all that all performance issues should go to the ombudsman in any shape or form. I want to ensure, though, that anything considered serious will not end up somehow falling under the umbrella of performance. I just wish to ensure that there are clear definitions of what each of those things are.

I do not know if I have time for one more question.

James Lawless (Kildare North, Fianna Fail)
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I am afraid the Senator is over her time. I let her continue for longer than I should have. I call Senator Robbie Gallagher.

Robbie Gallagher (Fianna Fail)
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I refer to the Commissioner’s presentation and his reference to the proposed granting of powers to the new Garda ombudsman body as being "disproportionate" and "unconstitutional". The term "flagrant breach of [...] human rights", was used. He also referred to there being no "mechanism for Garda personnel to complain to an independent oversight body", that investigations by the proposed new GSOC would take a long time, "be incredibly stressful" and a lack of communication between the new GSOC and the garda being investigated in that context. It was stated as well that there would be powers to search premises and offices. I wonder what the representative from the ICCL would make of those points.

Ms Doireann Ansbro:

I thank the Senator for his question. The ICCL fully supports procedural fairness. If there are issues concerning procedural fairness, then they should certainly be examined. Our view is that this proposed legislation contains several protections. The new ombudsman will be accountable to the Oireachtas and, potentially, to the High Court. We do not, therefore, consider this to be an unaccountable accountability body. This proposed legislation has accountability built into it.

We also view the proposed legislation as imposing a requirement on the new ombudsman's office to ensure that it executes its functions with fairness in respect of complainants and those being investigated. Our view, therefore, is that safeguards exist in this proposed legislation. If there are serious concerns in this regard, however, and if there are ways in which we can strengthen procedural fairness for everyone subject to investigation, then that is absolutely something which should be examined.

Robbie Gallagher (Fianna Fail)
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I thank Ms Ansbro.

James Lawless (Kildare North, Fianna Fail)
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Is the Senator happy with that reply and does that conclude his slot?

Robbie Gallagher (Fianna Fail)
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Yes, and I thank the Chairman.

James Lawless (Kildare North, Fianna Fail)
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I call Deputy Daly, who had indicated that he wishes to come in again.

Pa Daly (Kerry, Sinn Fein)
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I have one question for Mr. Toland regarding what he said about the inspection function within the proposed policing and community safety authority. He said that "it should be set out in legislation". He also said that it was important to ensure that all required information and documents be provided in that context and that the conditions do "not appear to be sufficiently strong" in respect of the undertaking of joint investigations. What would he suggest should be in the proposed legislation and how could it be strengthened in respect of the conditions he would envisage for joint inspections?

Mr. Mark Toland:

We welcome the new powers because there are gaps in our ability to do unannounced visits, to publish our own reports and to monitor responses to our reports subsequently. Therefore, we welcome the enhancement of those powers. It will be part of the responsibility of the proposed PCSA. We feel, however, that this aspect should be legislated for. The heads of this proposed Bill refer to a memorandum of understanding, MOU. We see that as something that would then have to be negotiated and agreed, as per the proposed legislation. What would happen, though, if no agreement could be reached in that regard?

We are happy with the powers it is proposed to provide, but we feel this situation should be more formalised. Those are the points we were trying to make. I refer to the legislation being strengthened, rather than just having an MOU governing this aspect. I refer in particular to trying to agree that MOU. We felt there was a gap in that regard. I think the legislation relevant to us refers to a requirement to provide documents but not information. Head 177 of this proposed Bill is clearer about what will be provided to the new ombudsman's office and we feel that provision should be replicated for the proposed PCSA and the inspection function. It is made explicit in that context that documents and information must be provided. I hope that clarifies this issue for the Deputy.

James Lawless (Kildare North, Fianna Fail)
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I thank Mr. Toland. Mr. Collins wishes to come in again on this point.

Mr. Bob Collins:

The Policing Authority did not specifically address the question of unannounced inspections by the proposed new authority in its response. That was because the Policing Authority's sense of the head of the proposed legislation as written is that it does not get in the way of unannounced visits. If we are wrong in that interpretation, we would certainly want to voice our support for the notion of nothing being in the way of such unannounced visits. There is no timescale involved in respect of advanced notice being given to the Commissioner. It would be possible, for example, to tell the Commissioner on a Tuesday that we were proposing to undertake an inspection of X or Y and then to be in those premises unannounced that evening. If it is felt, however, that greater clarity in that regard is required in the Bill as it emerges, then the Policing Authority will certainly support it, because the capacity to undertake unannounced visits is an important part of the inspection function.

Mr. Mark Toland:

When an inspection is being embarked upon, my understanding is that the Commissioner would be notified, as part of that inspection, that unannounced visits were going to be carried out, but not necessarily where the inspectors will be going. I thank the Commissioner because we have just finished an inspection and we looked at custody. For the first time, the Commissioner allowed us to do unannounced visits, to have access to people in detention and to talk to Garda members and people who had been brought to the Garda station.

We felt the legislation would be strong but we are grateful the Commissioner worked with us on a recent inspection to allow us to visit people in a Garda station.

Mr. Drew Harris:

We have no objection to unannounced visits. I conduct unannounced visits all the time. What I find is people properly doing their duties. I am glad for an inspector to have the same experience as I and my immediate colleagues have had. It is part of public confidence. If it gives members of the public confidence in what is going on in a Garda station, that things are well run, all incidents properly dealt with and all is regular, that is a plus for us. We have no objections to what is proposed in respect of unannounced visits.

Martin Kenny (Sligo-Leitrim, Sinn Fein)
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The heads of the Bill, from 49 onwards, basically deal with issues of creating the strategic plan and the service plan. How much input will the new board have in respect of that? It seems from my reading of it that a lot of it is the Commissioner's job to produce the plan. Heads 53 and 54 state the Minister can direct the Commissioner to amend the plan. Where is the role for oversight bodies in respect of that? Perhaps the Commissioner has a view on that.

Mr. Drew Harris:

The board's role in that, I understand, is for approval only. It is different from the present process, which the chair of the Policing Authority has outlined, by which we work in tandem in respect of the annual plan and are working through the strategic plan as we speak. It is a different process. We would be informed by our engagements with the authority, the Minister and the board. Much of the weight in terms of the timescales involved falls on the organisation and on me to deliver.

Martin Kenny (Sligo-Leitrim, Sinn Fein)
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It strikes me that there is an absence of the oversight we would like to see the authority having, particularly the part that says the Minister can direct the Commissioner in regard to amending the plan. That would raise eyebrows and is a departure from what we expected to see in legislation like this, which is about modernising and moving to a different type of policing from what we had in the past.

Mr. Bob Collins:

As I said, the authority would clearly prefer the existing arrangement to continue in relation to the service plan. That does not diminish in the slightest the engagement the Commissioner would have or, as the authority has always insisted, the ownership the Commissioner would have. As currently drafted, the proposed legislation provides that the Commissioner invites the policing and community safety authority, PCSA, to express its views on what the service plan should contain. The risk in that is that it makes it appear that the new authority is an agent of the Commissioner in that respect and can act only on foot of receiving the request from the Commissioner. That inverts or certainly distorts the relationship of distance and detachment that should exist between the Commissioner and the relevant oversight body.

If the Government persists with this notion and the Oireachtas enacts the provision as it is at the moment, that is to say, that it is not the new authority that develops the policing plan or service plan, then at the very least, it should be provided that the authority's initial intervention in the process is done out of its own statutory capacity, rather than at the invitation of the Commissioner. That is not just a semantic point, less still is it umbrage or sitting on a high horse. It is a meaningfully different arrangement if the authority does it from its own statutory power, as opposed to possibly being perceived as acting as an agent of the Commissioner and only on the Commissioner's request, even if that request is statutorily mandated. That is not an unimportant issue and the same applies to the strategic plan. In any event, the notion that policy priorities or a policing plan would be developed without engagement with the Commissioner is a nonsense. The current statute requires that engagement. It is a clearer statement of the independence and externality of the oversight if it is done in such a way.

James Lawless (Kildare North, Fianna Fail)
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That concludes our second round of engagement and our deliberations for this session. I thank the witnesses for their participation and written submissions. My apologies, I see the officials from the Department of Justice who have been observing proceedings would like to contribute.

Mr. Doncha O'Sullivan:

I am conscious the committee is working to a timetable and I will not take much time. I wish to record our appreciation for the opportunity to sit in on this interesting debate. We look forward to the committee's report. It continues a process of debate and consultation we have had with everybody on this call which has been productive and will continue as we continue to draft the Bill.

A wide range of issues were raised, some of quite a technical nature. We have a list of them here. If it would assist the committee, we would be happy to send a short note, which we will copy to the other participants, picking up on a few of the less technical points about particular sections, such as what accountability means or the point just made about the role of the different bodies in the strategic plan. That might be of assistance, notwithstanding that we accept there are important policy issues the committee has to consider in its own right. We would be happy to do that shortly.

James Lawless (Kildare North, Fianna Fail)
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I thank Mr. O'Sullivan. In terms of procedure, perhaps he will send those submissions or thoughts to the committee. We can include them in our deliberations and they can feed into the report. That is probably the way to do it. That would be useful to the deliberations. The committee will produce the report and submit it to the Department and others in the usual way.

I thank everybody for their engagement. I thank our witnesses, in particular, for their written submissions and questions and answers today. I thank members for their participation and interest. Deputy McNamara does not normally attend the committee but came in for this session. He is welcome to do so, as is any Member who wishes to contribute to one of our sessions.

I propose we publish the opening statements on the committee website. Is that agreed? Agreed.

The committee will meet again on Wednesday, 3 November, when we will meet first at 4 p.m. to discuss housekeeping matters. It will be a virtual meeting and can be attended remotely, if required. We will then have a formal meeting at 5.30 p.m. to discuss the important topic of women's shelters and domestic violence refuges.