Joe Costello (Dublin Central, Labour)

I welcome the Minister for Defence, Deputy O'Dea, and lament the fact that, once again, the Minister for Justice, Equality and Law Reform, Deputy McDowell, is not present. It appears he prefers to spend most of his time making statements outside the House. When we are dealing with such a fundamental issue as the restructuring of the Garda Síochána, and fundamental legislation, I would have thought he would be present to hear what Deputies on the other side of the House have to say but, instead, he disappeared half way through Deputy O'Keeffe's presentation.

The Garda Síochána has served the country well throughout most of the 20th century. However, at the beginning of the 21st century there is need to reflect on the strengths and weaknesses of the force in a modern, urban, rapidly changing and complex society. Serious questions have been posed of the Garda Síochána in recent times ranging from harsh criticism by Judge Morris of misbehaviour and mismanagement by certain gardaí in Donegal, to the failure to tackle the spread of drugs nationwide, to the declining crime prevention and detection rate, to a rising clamour of public discontent regarding Garda professionalism and Garda commitment. The time has come for a root and branch review of the culture, role, structures and operations of the Garda. Unfortunately, this is not what we have here.

It is time to establish an independent commission on policing in Ireland. It would be similar to that Independent Commission on Policing which was set up under the Good Friday Agreement in 1999 under the chairmanship of Chris Patten to create, in the words of the Agreement, "a new beginning to policing in Northern Ireland with a police service capable of attracting and sustaining support from the community as a whole".

The terms of reference of the commission would require the identification and setting up of new structures to ensure accountability, independent scrutiny and, above all, partnership with the community. Its methodology, if the Minister wants to set it up, would involve a comprehensive consultative process. A wide-ranging public debate on policing in the 21st century would be initiated. The commission would take that debate to the highways and byways. It would engage local communities in local parish halls, the length and breadth of Ireland. Equally, those professionally involved in policing practice and theory including the Garda would be consulted and best international practice would be ascertained.

In this context it is interesting to explore the thinking and methodology of the Patten Commission. The commissioners started out by rejecting Lord Denning's view — he of the "appalling vista"— that "the police officer is not a servant of anyone but of the law itself" and went on to quote with approval the first commissioners of the Metropolitan Police, Rowan and Maguire, who wrote as early as 1829 that:

Every member of the force must remember that his duty is to protect and help members of the public, no less than to apprehend guilty persons. Consequently, whilst prompt to prevent crime and to arrest criminals he must look upon himself as the servant and guardian of the general public and treat all law abiding citizens, irrespective of their social positions, with unfailing patience, courtesy and good humour.

Is not this what we would like to see all the time from the Garda Síochána? These sentiments mirror the statement of the first Commissioner of the Garda Síochána, Michael Staines, whose grandson is one of our chief criminal lawyers, who said in 1922 that, "the Garda Síochána will succeed not by force of arms or numbers but by their moral authority as servants of the people". These were brave sentiments in 1922 when the Civil War had just started and armed men were roaming the country. Even more than creating an unarmed police force, the founders of the State had got to the core of the issue. The police would be the servants of the people, no longer policing the community like the RIC it had replaced, but serving the community. In Northern Ireland the RUC had become a hopelessly polarised body. They were perceived as defenders of the Union from the Unionist perspective and oppressors of the people from the Nationalist perspective. The Patten commissioners asserted that "the police do not serve the State or any interest group, they serve the people by upholding the law that protects the rights and liberties of every individual citizen". The Minister would do well to reflect on these basic fundamental principles that were the starting point for the Patten Commission and the Garda Síochána in 1922 to the point of establishing our own independent commission to see the way forward. It would be valuable to look at the extraordinary, comprehensive methodology that was used. They set out on a course of informing and briefing their members by examining the existing policing arrangements in Northern Ireland, studying best practice worldwide and inviting written submissions from the general public and all political parties, churches, non-governmental organisations and bodies with a particular interest in policing. They held numerous private meetings with politicians, civil liberty groups, youth workers, editors and academics. They visited every police subdivision, every police station, police headquarters and spoke to individual police officers. They held oral meetings and hearings with political parties, businesses and trade unions. They held public meetings in every district council area in Northern Ireland. They employed consultants to conduct focus group studies and other consultants to conduct a cultural audit of the RUC. They carried out a survey on public attitudes to policing and the commission visited the Garda Síochána and a number of police services in Britain, Canada, South Africa, Spain and the United States.

A more exhaustive process or methodology could hardly be envisaged. The findings of the Patten Commission constitute a valuable reservoir and resource of methodology and material to be drawn from and adapted.

This was completed in a 12 to 15 month period. A new commission in the Republic could complete its work in six to nine months. A comprehensive and inclusive process is crucial. A lasting new police culture of service can only be delivered if a strong sense of participation, responsibility and ownership is first engendered through the consultative process. The Minister has missed a golden opportunity by failing to establish such a commission. The excellent proposals on community policing could now be jeopardised by a lack of an open, wide-ranging debate and consultative process prior to radically changing the future policing role of the Garda. It may not be possible to do it without having the background of a consultative process.

The view of the Labour Party is that there is a need for a Garda authority to oversee operation of the Garda Síochána at national level, to set objectives and priorities, to adopt policing strategies and annual plans with the Garda Commissioner, to conduct interviews and make promotional appraisals, to negotiate the annual policing budget with the Department of Justice, Equality and Law Reform, to monitor and evaluate Garda performance and to produce an annual report for the Minister. The Garda authority would be answerable to and appear before the Oireachtas Joint Committee on Justice, Equality, Defence and Women's Rights and the Committee of Public Accounts as required.

The Government has rejected the proposal for a new Garda authority made up of representatives of the community. Such an authority would be the only way to introduce full public accountability into the operations of the force.

As an example of the direct relation being retained, section 18 provides that the civilian member of the force, whether transferred from the Department or newly appointed, is to be a civil servant of the Government. Why can he or she not be a civil servant of the State?

Will the ombudsman have the power to investigate misbehaviour prior to the establishment of the office? Will the commission have the power of prior review? The lack of such an authority to act as a bulwark between the Commissioner and the Government means that there will continue to be an inappropriate degree of political interference in senior Garda appointments at every level above those of Garda sergeant and inspector. This remains a serious matter. A Garda authority would have the function of conducting the interviews and making promotional appraisals but this will not now be the case.

The failure to legislate for a Garda authority represents another missed opportunity. The umbilical cord between the Minister and the Commissioner gave rise to Mr. Justice Morris's conclusion that, "The Department of Justice is now utterly isolated from Garda headquarters. The Minister is obliged to take everything on trust." He is utterly isolated in terms of knowing what is happening. Mr. Justice Morris recommended that headquarters should take a more active role in the management of Garda divisions etc. The Minister has now admitted to the House that the reason he has introduced an amendment to set up a Garda inspectorate is as a result of this criticism in Mr. Justice Morris's report. If the Minister establishes an independent Garda authority, he would not need to set up his own eyes and ears body to determine what is happening in the Garda. This is essentially what the inspectorate is. The poor Minister is now setting up this body so that he will have an eyes and ears structure to monitor the Garda. If the authority was in place this would not be necessary. This is another missed opportunity.

However, the relationship between the Commissioner and the Minister is being placed on a formal basis, even if not an entirely open and transparent one. The Commissioner has direction and control of the force. He is the accounting officer of the Garda Vote and has power to enter into contracts. He is accountable to the Minister for his functions. According to the Act the Minister may issue written directives concerning any matter relating to the Garda Síochána, but the directives must be laid before the Houses of the Oireachtas. Section 22 envisages that the contents of a directive might be kept secret and instead the fact that it had been made would be disclosed. That information of itself would be entirely inadequate. Such lack of transparency must be addressed on Committee Stage.

It goes without saying that a police force constituted to serve the people should be accountable to the people. Therefore, the discredited in-house Garda complaints machinery should be dismantled immediately. An independent Garda ombudsman should be established to ensure that Garda behaviour in the course of duty is above reproach at all times.

The Irish Times -TNS MRBI opinion poll in February 2004, at the time when the establishment of an ombudsman was mooted, asked the following pertinent question:

The Government is proposing to establish an Ombudsman and /or independent inspectorate to investigate complaints against the Gardaí. Do you believe that the independent inspectorate should or should not have full powers of search and arrest in the initiation of investigations against the Gardaí?

An incredible 86% of those surveyed responded that the ombudsman should have full powers of search and arrest in the initiation of investigations against the Garda. Clearly the public have no faith in the existing Garda complaints machinery and they would support robust measures that would ensure Garda accountability.

As the title Garda ombudsman commission suggests, the Bill provides for a compromise, half-way house proposal. On one hand, the three-member commission is to be appointed on the nomination of both Houses and can only be removed by joint resolution of the Houses of the Oireachtas. Its independence is guaranteed. It will have power to conduct investigations on its own initiative and to examine and report on Garda policies, practices and procedures, even if the conduct of individual members is not culpable. When investigating complaints that may involve offences its officers will have the powers of gardaí, including powers of entry, search, seizure and arrest. This is to be welcomed.

On the other hand, while the ombudsman commission will have power to appoint its own staff and will inherit the staff of the former Garda Complaints Board, it will also have power to engage the temporary services of serving members of the Garda Síochána. Those members' services as officers of the ombudsman commission will count as continuing service in the Garda Síochána for purposes such as pension, seniority and promotion. These seconded officers will have power to act as investigating officers in respect of complaints against their former and future colleagues.

This enabling provision, set out in section 66, has the potential to undermine completely the real and perceived independence of the commission. It should be abandoned and removed from the Bill. The initial step on receipt of a valid complaint of obtaining and preserving all relevant evidence is entrusted under section 81 to Garda members. This function should instead be vested in the officers of the ombudsman commission. In the absence of a complaint by or on behalf of a specific and identified individual who claims to have been directly affected by the conduct to be investigated, the commission has no power to investigate a matter if it suspects a Garda may have committed a criminal offence or breached discipline. I have already referred to the investigative role of the ombudsman and whether that office will have the power of prior review of cases. These matters require to be addressed on Committee Stage.

The provision on joint policing committees is one of the central areas of the legislation. Chapter 4 dealing with co-operation between the force and local authorities and with arrangements for obtaining the views of the public is welcome as a considerable strengthening of the Minister's original two short sentences in the general scheme published in 2003. It goes a long way towards the Labour Party's proposals for policing liaison committees which, in turn, were drawn from the Patten Commission report. Those important sections of the Garda Síochána which specifically relate to working with people in the community context, namely, community policing and neighbourhood watch, remain Cinderellas of the force decades after their establishment. These programmes are underresourced, understaffed, underpromoted and underappreciated, to coin a few words. New structures of policing and community participation must be developed and allowed to evolve to reflect the new ethos that the Garda Síochána's role is not to police the community but to police with the community.

To be effective, community policing requires new structures to be anchored at local level. These structures must reflect a partnership between the police and the community. Local government administered by local authority officials and local public representatives is the obvious choice of location for new partnership structures. Local level requires co-operation at far more immediate level than having, for example, a single policing committee to deal with Fingal County Council which covers an area of approximately 173 sq. m. and has a population of 168,000.

See this speech in context