Michael McDowell (Dublin South East, Progressive Democrats)

I made a change on Committee Stage in the Seanad to allow a declarant to omit the reference to the deity from the declaration if he or she wishes to do so.

Provision is made in the Bill for the appointment of properly trained volunteer members to the Garda Síochána in the future. This provision attracted much comment during the debates in the Seanad. As I stated last week, this is entirely separate from the business of increasing the strength of the force to 14,000 members, and I make it clear that in no way do I consider a Garda reserve to be a substitute for a professional full-time police force in the community. In the light of recent ill-informed comment on the subject, I emphasise that the provision is contingent on the making of specific proposals to the Minister for Justice, Equality and Law Reform by the Garda Commissioner on the training issue and the making of regulations dealing with that matter, as well as recruitment and terms and conditions of service.

The intention would be that committed members of the public could volunteer to provide a reserve of part-time personnel to support the work of the Garda Síochána. Legislation has existed since the 19th century in the United Kingdom providing for the appointment of special constables who to this day provide a valuable and unsalaried role involving members of the community in policing. Almost every common law country with a system similar to ours has some form of police reserve of that kind.

The confidentiality of information provisions, set out in section 55, were amended slightly on Committee Stage in the Seanad. The effect of the changes was to expand the circumstances in which a person may disclose information which may have a harmful effect. The original provisions were perhaps a little too restrictive and the changes made allowed a little more latitude to persons performing duties coming within the ambit of section 55. For consistency, a similar change was made in section 73 which deals with confidentiality of information provisions to be applied to persons performing duties in the ombudsman commission.

As I stated earlier, the second objective to be achieved under the Bill is establishment of an independent Garda Síochána ombudsman commission to investigate complaints by members of the public against members of the Garda. The new body will replace the existing Garda Síochána Complaints Board. While the existing board has performed well given the limitations of the existing legislation, it is clear the present system does not command full public confidence and the complaints board itself, to be fair, has identified the problems it has encountered. Therefore, change is necessary and a new mechanism must be put in place to ensure openness and transparency if public confidence in the investigation of complaints against members of the Garda Síochána is to be reclaimed.

A significant development is that the new body will not require the catalyst of a complaint being made by a member of the public before it can initiate an investigation. Provisions are included in the Bill which will enable the ombudsman commission to investigate Garda conduct even where no complaint has been made, but where an investigation is clearly called for in the particular circumstances. The commission will be able to act on its own initiative in such cases or on a referral from the Garda Commissioner or the Minister.

As regards its membership, the commission will consist of three persons, one of whom must be a man and one of whom must be a woman. The provision is made for the possible appointment of a superior court judge to one of the positions. The appointments will be to full-time positions for a term of between three and six years and the members will be appointed by the President on the nomination of the Government and on the recommendation of both Houses of the Oireachtas. The ombudsman commission will be independent in its composition and its investigations. None of its members can be a current or former member of the Garda Síochána.

As regards the investigation of complaints, every complaint will be either made to or referred to the ombudsman commission. In the case of the most serious complaints, involving death or serious injury, provision is made for the ombudsman commission to investigate, which will satisfy a requirement under the European Convention on Human Rights. In the event of any other complaint, it will be a matter for the commission, exercising its — I stress "its"— independent judgment, to decide whether it should investigate the matter or refer it to the Garda Commissioner for investigation. In cases where complaints are referred to the Garda Commissioner, the commission can decide whether to supervise the investigation. If the commission is not satisfied with the progress or even the outcome of an investigation, whether supervised or not, it can take over the investigation itself at any time. Therefore, the commission will retain ultimate independent control over every investigation. In that respect, the statutory powers of the ombudsman commission are the same as those in Northern Ireland.

It was stated in the Seanad on a number of occasions, and I am sure I will hear it again in this House, that the Bill provides for gardaí to investigate gardaí. In no way do I accept that the Bill provides for gardaí to investigate gardaí as a matter of course. No matter what route is chosen by the ombudsman to investigate complaints, ranging from the most serious allegations including possible criminal offences to those at the lower end of the scale including breaches of discipline, the commission retains control and direction over the whole proceedings. I cannot emphasise this point strongly enough.

As regards more minor complaints, and when I say that I am talking in relative terms as every complaint is important to the person making it, I hope many of them will be amenable to the informal resolution or mediation processes provided for in the Bill. While the existing system has provision for informal resolution, it simply has not worked. The provisions of the Bill are directed at promoting informal resolution in cases where the ombudsman commission considers it appropriate and where all parties concerned agree.

The ombudsman commission will be able, at the Minister's request or following the Minister's approval of a recommendation of the commission itself, to examine Garda practices, policies or procedures with a view to preventing or reducing the future incidence of complaints arising from those practices, policies or procedures. Therefore, the system proposed will have the capacity to deal with systemic problems which give rise to complaints.

The staff of the ombudsman commission, both administrative and investigative, will have civil servant status. The commission will also be able to enter into arrangements with the Garda Síochána or other police forces, or any other body, to engage police officers or other persons on a temporary basis to assist it in carrying out its investigations. Similar provisions exist in Northern Ireland. In the early days of the commission's operation, time will be required for its staff to gain experience and get up to speed in carrying out civil and criminal investigations. It therefore makes sense to empower the commission at its own discretion to make use of such expertise.

The commission's investigative staff will have comprehensive powers of criminal and civil investigation. When I published the details of the general scheme, I deliberately omitted the detail of the investigative powers to be given to the commission as I wanted time to consider what would be required to ensure we got it right. I concluded that, where criminal offences are involved, the commission must be capable of conducting an investigation to the same standard as the Garda Síochána. Therefore, its investigating officers must essentially have the same powers as members of the Garda Síochána, frightening though this may be for those who see it in print for the first time. The Bill confers on designated officers of the ombudsman commission all the powers and immunities and all the duties imposed on any member of the Garda Síochána by or under any enactment or the common law. There are two exceptions to this: powers under the Offences Against the State Acts and powers under the Interception of Postal Packets and Telecommunications Messages (Regulation) Act 1993, other than the power to gain access to call-related information, known as telephonic data.

An aspect of the powers to be conferred on the commission which attracted considerable attention in the Seanad and the media is the special provision for the search of Garda stations, in recognition of the position of the Garda as a security service and the fact that information relating to national security could be held in some stations. As there has been much misunderstanding about these provisions, I will explain precisely what the Bill provides for in this regard. There have been inaccurate suggestions that the special provisions dealing with Garda stations holding information relating to national security apply to searches of Garda stations generally. This is not the case.

Section 91 deals with the search of Garda stations. Designated officers will have power to enter and search any Garda station for the purpose of investigating complaints which may involve offences. Such searches must be authorised by a member of the ombudsman commission. Where the station which is the subject of a search holds sensitive security information, subsection (3) provides that the commission must notify the Minister and the Garda Commissioner of the intended search. It does not provide for a period of one, three, 12 or 24 hours, as has been canvassed. That is not provided for in the Bill. The Garda Commissioner may object to a search, but only on grounds relating to national security and for no other reason. In such circumstances, provision is made for the Minister to issue directions excluding from the search any part of the premises in question or any storage facility containing information or documentation or to impose the necessary conditions relating to the security of the State.

So that there will be no confusion about the stations likely to be involved, provision is made for regulations to be made designating Garda stations where information or documentation relating to the security of the State is held and which shall not be subject to search except to the extent that the Minister so directs. Regulations may also be made designating information or documentation relating to the security of the State which must not be disclosed, except to the extent that the Minister so directs.

These exceptional limitations, which are exceptions to a general rule, are reasonable and essential having regard to the fact that the Garda Síochána is not just a regional constabulary but a national security service. No other security service in the world would allow people to walk in off the street and start rooting through its files and records. I will not introduce such a rule into Irish law. I am sensitive to the concerns expressed in some quarters that the exceptions might be too readily invoked. As I explained in the Seanad, this is the reason I included a counter-balancing safeguard in the Bill. Provision is made for a judge of the High Court to have oversight of the operation of the provisions of the Bill authorising the withholding of, or denial of access to, information on grounds of State security. This will be a sufficient deterrent against potential abuse of these provisions. I reiterate that a judge of the High Court will have the function of examining every time that particular immunity is invoked, supervising it and being in a position to give an objective view as to whether it has been abused on any occasion.

As I mention judicial oversight, I should also mention that provision is made for judicial oversight of the conduct of designated officers of the ombudsman commission. This is in recognition of the extensive powers being granted to them under the Bill. The phrase, quis custodiet ipsos custodes, immediately comes to mind. It was a key concern of the Garda associations when I met them. A superior court judge, nominated by the Chief Justice, will be able to conduct an inquiry into any allegations that the ombudsman commission's officers may have abused their powers or position.

It might be recalled that the Director of Public Prosecutions commented previously on the impact of the normal six-month time limit for summary prosecutions in cases dealt with under the present complaints system. The DPP pointed out that investigation files on complaints can be almost date-expired when they reach his office, thereby making prosecution decisions impossible, no matter how strong the evidence may be. While one response to this would obviously be speedier investigations, which I favour, I also think it right to take the opportunity to provide that the normal time limit of six months, which was originally set down in the Petty Sessions (Ireland) Act 1851, should be 12 months for summary proceedings relating to an offence reported to the DPP under the Bill. The Bill provides accordingly in section 96.

The most significant addition to the Bill, which was brought forward on Committee Stage in the Seanad, involves the inclusion of a new Part 5 providing for the establishment of a new body to be called the Garda Síochána inspectorate. My decision to establish the inspectorate had its origins in the first report of the tribunal established under the chairmanship of Mr. Justice Frederick Morris to inquire into allegations of Garda corruption in Donegal. Specifically, the proposal is brought forward in light of recommendation 13.96 on page 489 of the tribunal's report that the Department of Justice, Equality and Law Reform, in line with its statutory oversight role in regard to the Garda Síochána, must be empowered by knowledge. Therefore, the main functions of the inspectorate will be to ensure that the Minister and the Department have objective information on matters relevant to the functioning of the force in line with the aims of the Bill to make further and better provisions in regard to the Garda Síochána. There is no point being accountable to this House if one does not know what is going on.

The inspectorate will be a three-person body, one of whom will be known as the chief inspector. The inspectorate will examine thematic policy issues with standards, practice and performance benchmarked to comparable international policing experience. The key objectives will be to ensure and promote advice and support to the Minister and the Department. I am confident this body will ensure that the Minister for Justice, Equality and Law Reform of the day will be better informed on particular aspects of the policing function and will be in a position to give up-to-date and accurate information to the Members of this House and the other House as required and in accordance with his or her constitutional and statutory obligations.

Section 122 deals with the exercise of special powers by security officers. There was confusion over this provision in the Seanad. This is an enabling provision allowing the head of any of the bodies listed in subsection (1), for example, the Courts Service, the Office of the Attorney General, the National Gallery, a Department etc., to take on private security staff in certain well defined and regulated situations. The intention underlying these provisions is to facilitate the release of highly qualified members of the force for duties for which they were trained. It is certainly not the intention that private security personnel will replace the Garda security presence at all locations.

Special mention was made in the Seanad of the position regarding the courts and these Houses. In this regard, there will continue to be a need for a Garda presence in both cases. It will be a question of finding the right balance as to the Garda presence required in association with the security presence. With regard to the recent announcement by the Courts Service about new security arrangements which will operate in the Four Courts complex, these arrangements, which have been put in place independently of this Bill, are not linked with the special powers provisions of section 122.

There was also much concern in the Seanad that the Bill was providing for police powers to be given to these security officers. I stress that security officers will not have general police powers. Their powers are set out in subsection (4). In the main they relate to what might be regarded as normal checking of identity, examination and seizure of articles, refusal of entry and use of reasonable force where necessary. Their capacity to search a person is limited and there is no mention in the section of their being given a power of arrest. In the latter regard, security officers will be no different from other members of the public who decide to make an arrest under section 4 of the Criminal Law Act 1997 which provides for what is colloquially termed a "citizen's arrest".

I reiterate the importance the Government attaches to the significant reforms set out in the Bill. They have been carefully crafted and I advocate them in a spirit of support for the Garda Síochána. I have no doubt that the provisions contained in the Bill will underpin the sterling work of the Garda Síochána in protecting our freedom as individuals and as a society. I want to take this opportunity to pay tribute to the force for the success of Operation Crossover as set out in today's newspapers. It is a pleasure on occasion to see that the forces of law and order, in an organised and systematic way, take on the threat to the security of society which exists in some quarters in an effective way which yields results.

As I said in the Seanad, we must never forget the sacrifices individual members of the force have made for our protection. I want to reiterate this because they are criticised on many occasions, but very few of us would or could do their job for a week. I will not go into the detail of what they do, but it includes staying with bodies found dead, informing relatives, looking after victims of crime, preserving scenes of crime, standing up to thuggery and all the things most gardaí hope they will not have to do on a given day but expect they may have to do. When one considers what they do and are expected to do for us, some of their critics would not last a day in the job without cracking up.

The task of the force has always been difficult, but challenging. Our society, which is policed by the Garda Síochána, is more questioning, sometimes more aggressive and less respectful of authority. The changing nature of our society with increased urbanisation, a decline in traditional authority structures and the like, all require a different form of policing. The Garda Síochána has to change to meet the changing Ireland.

The force has been subjected to a fair deal of criticism in the recent past. It should accept criticism when failures are evident and where that criticism is fair. Nonetheless, when passing judgment on the force we should never forget the courage and good character which, for the most part, characterise daily policing. In my experience such qualities are much more constantly prevalent than any, or all, of the infrequent failures.

We should never lose sight of the fact that the Garda Síochána is made up of ordinary men and women performing extraordinary tasks to whom we entrust the most challenging, demanding and difficult tasks in our community. There is goodwill, support, respect and trust for and in the Garda Síochána. My intention in the Bill is to build on those reserves and, as such, I commend this Bill to the House.

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