Pat Rabbitte (Dublin South West, Labour)

I am pleased to have the opportunity to make a few remarks on the Bill. As the House will know, serious questions have been posed of the Garda Síochána recently. These have ranged from harsh criticism by Mr. Justice Morris of misbehaviour and mismanagement by certain gardaí in Donegal to the failure to tackle the spread of drugs nationwide, declining crime prevention and detection rates and a rising clamour of public discontent about Garda professionalism and commitment.

I speak as someone who is representative of a generation which has great respect for the Garda Síochána and the many dedicated men and women in the force, especially the Garda Commissioner whom I hold in high regard. The time has long since come, however, for a root and branch review of the culture, role, structures and operations of the Garda. In the context of this need, the publication of the Bill, which broadly I support, represents a missed opportunity. I am also doubtful if Garda management has the training and skills to deploy professionally and efficiently Garda resources to best effect. The snail-like pace of the civilianisation programme is not a cause for confidence. I quote Mr. Denis Bradley, vice-chairman of the Northern Ireland Policing Board, who said while giving evidence to the Joint Committee on Justice, Equality, Defence and Women's Rights just a few days ago that he would not start from the point at which the Bill did if the aim were to go where he thought it should.

Mr. Bradley made a number of important points in his analysis of the Bill which are worth repeating due to his experience and expertise. He lamented the absence of a police authority between the Department of Justice, Equality and Law Reform and the appointment of the Commissioner and senior Garda officers. He pointed out that the Conroy report, which dates back to 1968, made such a recommendation. He stressed the importance of establishing a political but independent group of people to act together to make senior appointments to maintain a distance between Government and the police. He referred in particular to our tendency to adopt "a terrible centralism" in which power is centralised, hierarchical and mostly male. No organisations in the world are more centralist, hierarchical and male than police services in which most decisions are taken at the top or in the centre and in which those in charge seldom devolve power if they can avoid doing so. According to Mr. Bradley, if power is not devolved within police structures and through civilian involvement and engagement as well as through oversight of policing, the police will remain centralist and very distant from the community.

The need for a Garda authority and effective liaison at local level are connected issues. If provided, both would serve the imperative to move from a centrally directed service to one which is not only aware of and responsive to the needs of the community it serves but accountable to it. Community policing is not achievable unless there is community oversight.

Two years ago the police in Northern Ireland drew up a document entitled Policing the Community in Northern Ireland. It emphasised that what is needed is a cultural change within policing itself. Such change should take into account, in the words of Ronnie Flanagan, that "policing is too big to be left to the police themselves". If the community is not formally engaged with and does not have an ownership stake in policing, there is a danger of complete alienation between the police and the majority of citizens.

Mr. Bradley's final point was to remark on the tendency to debate the respective merits of effective policing, judged by a police force's own performance indicators and other criteria, and the sort of policing the community wants. He stated:

Senior police officers will tell one that what the community wants is not effective policing. They will say, for example, that patrols on the street do not deliver effective policing. They will say that there are better and more professional ways of policing. The community, on the other hand, will say they want police officers walking the street and there is this supposed clash.

The reality is that these are not polar opposites. Both sides are right, but the police and the community are looking for two different things. The police officer wants effective policing and he is right in saying the man or woman on the beat does not provide this. The person who lives on the street, however, who wants gardaí on the beat is also right because what he or she is talking about is the fear of crime. In other words, police can be very effective and professional in what they do but they must also meet the needs of people, much of it through new and effective community policing.

Five years ago my colleague, Deputy Howlin, published the Labour Party's proposals for a Garda authority and Garda ombudsman. At that time we said that dissatisfaction with the structures under which the Garda Síochána operates exists and must be acknowledged. Dissatisfaction relates to the extent to which the force responds, is seen to respond and is capable of responding to legitimate community concerns. It includes widespread unhappiness with the working of the Garda complaints board and the adequacy of its governing legislation. It extends to the manner in which the force dealt with controversies such as the McBrearty, Carthy and Dean Lyons cases. This situation poses challenges to effective policing in Ireland. The challenge must be met head on.

Confidence in effective, efficient and accountable policing is a critical component of any normal democratic society where the rule of law prevails. That is why, for example, the reforms of the police force in Northern Ireland proposed in the Patten report were so central to the peace process there. Of the Patten proposals only seven or eight were in any way controversial. The rest, and there were 175 in total, were regarded as sensible and practicable. While we in the Republic of Ireland were keen to press upon politicians in Northern Ireland the importance of the Patten proposals, we have been slow to realise that if implemented, they will put policing in Northern Ireland on a much more modern footing than that of the Garda Síochána.

It is time we established an independent commission on policing in Ireland. It should be similar to the independent commission on policing which was set up under the Good Friday Agreement in 1999 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 the setting up of new structures to ensure accountability, independent scrutiny and, above all, partnership with the community. Its methodology would involve a comprehensive consultative process. A wide-ranging public debate on policing in the 21st century should be initiated. The commission would take that debate to the highways and byways of the country. It would engage communities in local parish halls the length and breadth of Ireland. Equally, those professionally involved in policing practice and theory, including the Garda itself, would be consulted and best international practice would be ascertained.

The findings of the Patten commission constitute a valuable resource and reservoir of methodology and material that can be drawn from and adapted. The Patten commission was given 12 months to conduct its work. The new commission could complete its work in six to nine months. It is crucial that the process is comprehensive and inclusive. A lasting new police culture of service can only be delivered if a strong sense of participation, responsibility and ownership is engendered through the consultative process.

It is the Labour Party view that there is need for a Garda authority to oversee the operation of the Garda Síochána at national level, to set objectives and priorities, adopt policing strategies and annual plans with the Garda Commissioner, conduct interviews and make promotional appraisals, negotiate the annual policing budget with the Department of Justice, Equality and Law Reform, monitor and evaluate Garda performance and produce an annual report for the Minister. The Garda authority would be answerable to and would 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 individuals representative of the community as a whole. Such an authority would have introduced public accountability into the operations of the force. 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. The failure to legislate for a Garda authority represents another missed opportunity. I thought this Minister might have taken that courageous step.

The relationship between the Minister and the Garda Síochána is being placed on a formal if not an entirely open and transparent basis. The Commissioner will have direction and control of the force, will be Accounting Officer for the Garda Vote and will have power to enter into contracts. He will be accountable to the Minister for his functions. 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 the fact that it had been made would be disclosed instead. That information of itself would be inadequate.

It goes without saying that a police force which is constituted to serve the people should be accountable to the people. Therefore, the discredited in-house Garda complaints machinery should be dismantled immediately. In saying that, I do not reflect in any way on the excellent people who work for the board. An independent Garda ombudsman should be established to ensure that Garda behaviour in the course of duty is above reproach at all times.

As the name suggests, the Bill provides for a compromise, a half-way house proposal. On the 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. Its independence is guaranteed. It will have power to conduct investigations on its own initiative and 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' powers will include, "powers of entry, search, seizure and arrest" of gardaí.

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' service 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 regard to complaints against their past, and future, colleagues. That is a mistake. This enabling provision, set out in section 66, has the potential to undermine the real and perceived independence of the commission. It should be abandoned and removed from the Bill. I hope the Minister will agree to do that on Committee Stage.

On receipt of a valid complaint, the initial step of obtaining and preserving all relevant evidence is entrusted under section 81 to members of the Garda. 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.

Chapter 4 of the Bill, 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. It goes a long way towards the Labour Party's proposals for policing liaison committees, which were in turn drawn from the Patten report. Those important sectors of the Garda Síochána which specifically relate to working with the people in a community context, namely, community policing and neighbourhood watch, remain the "cinderellas" of the Garda, decades after their establishment. They are under-resourced, understaffed and underpromoted. There is no career structure in community policing and, as Denis Bradley pointed out:

Culturally, they are seen to be less effective as police officers. They lose part of their status because they are seen as the soft side of policing rather than the effective side.

It is a tragedy that this mindset persists within the Department of Justice, Equality and Law Reform.

I do not believe that the Department officials, dedicated and diligent as they are, appreciate the extent of the anti-social behaviour phenomenon that is ravaging so many of our communities. I appreciate that it is not as major an issue in the middle class areas in which those of us who inhabit this House and the Department of Justice, Equality and Law Reform, mainly, live. However, in large tracts of Ireland, not only urban Ireland, this is the single greatest issue affecting very many neighbourhoods and communities, where there is a virtual breakdown of the fabric of society. The amount of resources being put into community policing is entirely inadequate.

The strategic approach to community policing is inconsistent and, as Denis Bradley said, culturally the gardaí are less effective as police officers. They lose part of their status because they are seen as the soft side of policing rather than the effective side, but nothing could be further from the truth. Where the community policing experiment works and is deployed to effect by the Garda authorities, it is a tremendous success. Local communities are deeply indebted to the small number of community gardaí, men and women, in their areas and they have the highest respect and value for the work they do.

However, there does not seem to be an appreciation of the extent to which these communities are under siege. I have raised on a number of occasions in the House the plight of old people, men and women living alone, people who are different and immigrants targeted for persecution and harassment by young thugs out of control. This reflects the breakdown of parental responsibility. In some cases the parents are more dysfunctional than those who are marauding, joyriding and terrorising local communities, and it is not being dealt with. The areas are not being policed. The community allocation is inadequate.

In the early stages of this Bill's preparation I raised with the Minister the desirability of police liaison committees at local authority level. He has acknowledged that and I thank him for enshrining it in the legislation. It needs, perhaps, to be adapted to the metropolitan area to have regard for complexity of policing, population densities and so on, but it is a good initiative. I have no doubt, however, that unless the police liaison committees are established and required to answer in front of the media in county council chambers, where the work is monitored and assessed over a period, this issue of anti-social behaviour will come back again and again. The Minister and his Departmental should tackle it now and the deployment of resources for community policing ought to be addressed.

It is the Labour Party view that community policing requires new structures to be anchored at local level to be effective. 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 government requires co-operation at a far more immediate level than one single policing committee to deal with, Fingal County Council, for example, which covers an area of approximately 173 square miles and has a population of almost 170,000.

Section 32 allows for a joint policing committee in respect of each of the 29 counties, five cities and 80 towns. However, major metropolitan suburbs are ignored and this should be looked at again. A strategic policy committee based on the county council or county borough would bring together the local public representatives, local authority officials, senior gardaí, representatives of State agencies and community and business interests. Together and in consultation with the new Garda authority they would prepare a county or city policing plan. Second, a smaller area committee would prepare an area policing plan. This policing plan would be agreed by local public representatives, the senior officer from each Garda station, community and business interests and local authority officials for the area. It would be approved by the Garda authority.

The community policing forum would be the basic unit of interface between the public and the Garda. It could operate within a geographical remit of one Garda station or more, or a local electoral area or part thereof. Local needs would determine time and place. It would be a forum for public representatives, local Garda officers, resident associations, community groups, members of the public and local authority officials to assemble in committee or in open forum as circumstances warrant. Residents could articulate their concerns, observations and experiences of crime in their communities. Crimes against the person, alcohol and drug abuse, crimes against property, vandalism and anti-social behaviour would be discussed and noted. Factors giving rise to these criminal activities and strategies to tackle them would be identified. Allocation of policing work would be agreed within the forum. In some instances the local authority would be asked to take action through such means as improved lighting, extinguishment of rights of way over laneways and warnings or eviction of tenants.

An independent co-ordinator would liaise with the Garda, the local authority and the community and business groups to ensure that agreed policing and other delegated work was carried out and that the various groups and individuals were kept informed of progress on a regular basis.

The intention behind the Bill is to repeal all the Garda Síochána Acts, other than those dealing with Garda compensation and the acquisition of premises. The Bill provides that the existing force will continue in being and, for the first time, sets out its statutory functions. It provides, however, that nothing in the Bill affects the common law powers, immunities, privileges and duties of members of the Garda Síochána. This naturally raises the question as to what exactly is the status of an individual member of the force at common law.

Is a member of the Garda Síochána a constable, enjoying common law powers and immunities? The word "constable" has never been used in any of the Garda Síochána Acts. If the member has common law powers, is he or she subject to control in their exercise? Is the Commissioner, the Minister or the State liable for their wrongful exercise? Indeed, when statutory powers are conferred on a member of the force, are they exercisable by him or her at personal discretion, as an individual garda, or is the member subject to the direction and control of superior officers, as a member of the Garda Síochána? If a superior directs a member to arrest someone and he or she does not personally have any grounds for suspecting that the individual is guilty of an offence, is the arrest lawful? This is a fundamentally important question. The answer is uncertain and is at present the subject of a Supreme Court appeal. It is regrettable the Minister did not take the opportunity to provide clarification.

Section 41 provides that the State is civilly liable for the actionable wrongs committed by individual gardaí "in the course of performing the member's functions under this Act". This is odd, not least because the Bill does not set out any functions of members of the Garda Síochána, as opposed to functions of the force, for which the State could become liable. The section firmly places the State's liability for the wrongs of a garda within the context of an employer-employee relationship, in so far as statutory functions are concerned. However, it remains unanswered as to who, if anyone, is liable for wrongful acts committed by a garda in the performance of non-statutory or common law functions.

The thinking behind the proposal in section 14 to admit unpaid but trained volunteers to the rank of garda in the force, to assist it in exercising its functions is not explained. It requires further elaboration and justification. The section does not even state that volunteer gardaí are to be unpaid, part-time, or both. It is worth noting in this context that few gardaí live in working class areas of Dublin. Gardaí do not live in those areas or go to mass, the pub or the bookmakers in those areas. They do not do the normal everyday things others in those areas do. The question then arises for community policing, as to the extent one can draw people from within a community to assist in policing their own community. The Government has no proposals in this area.

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