Tim O'Malley (Limerick East, Progressive Democrats)

I thank all Members who contributed to this extensive debate. Their detailed interest in its provisions reflects its importance as the most significant reform of the Garda since the foundation of the State. The Minister looks forward to a continuing and constructive input from Members on Committee Stage. Following the line the Minister took in the Seanad, he is open to suggestions that may be tabled with the intention of improving the Bill and he will examine carefully amendments that are put to him in that vein. I have been asked by the Minister to comment on the more substantive issues that came up in the debate. However, if I do not have enough time to comment on other points raised by Members, they can be revisited on Committee Stage.

The question of setting up a policing board or authority for the Garda was raised principally by Deputies Costello, Quinn, Broughan and Howlin. The Deputies are impressed with the work carried out by the Patten commission and its seminal report on policing in Northern Ireland. Who could not be impressed with that major undertaking and its recommendations? However, the Minister believes we should be careful about extrapolating recommendations drawn up in the specific context of the proper development of the policing function in a deeply divided and polarised society and applying them in a context where these considerations do not arise. This issue was touched on at a meeting of the Oireachtas Joint Committee on Justice, Equality, Defence and Women's Rights on 10 March last, in the context of its work on community policing as part of its ongoing examination of the development of the criminal justice system.

The creation of a police authority in the context of Northern Ireland, as recommended by Patten, makes sense given the need to accommodate and give a voice to the various strands of political opinion there. None of these factors is present in our case. Furthermore, unlike the greater part of the UK, where there are 43 different regional constabularies and where the concept of regional police authorities may also have merit, Ireland has only one police force. It was pointed out in an article in The Times on 15 March that:

The level of democratic accountability to which the police are subject in Britain today is woeful. The police authorities who exercise nominal responsibility for holding the police accountable are staffed by well-meaning and in many cases capable individuals. But they have limited powers and operate without a direct mandate.

It is a basic principle of a democracy that the police should be accountable to the democratically elected representatives of the community they serve. The best way to ensure that in Ireland is the direct way, that is, through immediate and effective procedures ensuring ministerial accountability to Parliament. Where police are organised on a regional level, they are normally accountable to the appropriate local government representative. For example, the New York Police Department reports to the mayor of New York. Where police are organised at a national level, they are normally accountable to a minister of central government. This applies in the USA with the FBI, in Canada with the Royal Canadian Mounted Police and in most EU countries.

The State has one police force, which is part of the Executive arm of the State and which is answerable through the Minister for Justice, Equality and Law Reform to the Houses of the Oireachtas for all aspects of the policing function, including the State security aspects. The structure recommended by Patten, therefore, is appropriate to a regional police service within the UK structure, particularly in Northern Ireland where there are difficulties as regards local government and elected representatives. However, one cannot take a model designed for a multiplicity of regional police services and apply it to a national police service. It does not make sense and it does not follow the model found in the vast majority of western democracies. Moreover, the introduction of a Garda authority would introduce an extra layer of bureaucracy and serve to transfer the supervisory role of the Dáil to an unelected Garda authority. The Minister does not see how this would improve efficiency or accountability. Does anyone believe that democratic accountability would be served if the Minister was not called to account to reply to parliamentary questions and debates on policing and crime issues because such matters were the responsibility of an independent policing board?

Deputy Costello also raised the issue of a commission on policing to tour the highways and byways seeking opinion on proposals for reform of policing. While the Minister acknowledges the general merit of such an idea, his view when he assumed office was that there had been enough talking and that it was time for action. The Bill's proposals reflect the outcome of a thorough review and consultation process. A review of the Garda as part of the Government's strategic management initiative set down key principles for the future management of the force, which have been taken on board. In essence these were a need for clarity as to the roles and functions of the Minister and the Garda; operational responsibility, including financial responsibility, should be assigned to the management of the Garda; the level of democratic accountability should be enhanced; and all this should be achieved in an open and transparent fashion.

The Minister was also conscious of the need for wide consultation. For that reason, he decided to publish the general scheme of the Bill in July 2003 and invite submissions from interested groups and the public in general. He consulted Garda management and held meetings with several of the Garda associations which are still ongoing. He also met the Oireachtas Joint Committee on Justice, Equality, Defence and Women's Rights to discuss draft proposals and hear members' views. He is grateful to all those who expressed views on the general scheme, whether supportive or critical. In hindsight, the Minister has said he is glad he chose to act.

We could talk forever without making progress. We have before us a concrete Bill to debate, and as the Minister showed in the Seanad, he is open to suggestions and amendments, provided they are backed by convincing argument. The important matters of anti-social behaviour and community policing were raised by several Deputies across the House. The Government is acutely aware of those problems, and there are several provisions in the Bill designed to tackle such issues. That is one of the main reasons the Bill is so important. For the first time, it clarifies in statutory form the sensitive relationships between the Government, the Minister for Justice, Equality and Law Reform and the Garda Commissioner in areas where there are crossovers between purely operational matters for the Garda Síochána and matters of great public concern.

First, there are provisions in chapter 4 of the Bill relating to co-operation with local authorities and arrangements for obtaining the views of the public. They deal in the main with the establishment of joint policing committees and local communities. I shall deal with that in greater detail in a moment. Second, the Bill provides, in section 19, for the setting of policing priorities by the Minister in consultation with the Commissioner, and any details in that regard are to be laid before each House of the Oireachtas. Then there is the obligation on the Commissioner set out in section 20 of the Bill to prepare a strategy statement to take account of Government policy or any priority set by the Minister for Justice, Equality and Law Reform.

A requirement is set out in section 21 for the Commissioner to prepare an annual policing plan that will have regard to those priority strategies and Government policies. That plan will also have regard to written policy directives issued by the Minister with Government approval. This scheme will provide for the most effective response to the most pressing issues that may arise from the overall context of policing in the future.

Several Deputies referred to the difficulties that arise from the adherence to the old boundaries that were laid down for Garda district divisions and the fact that they are out of line geographically with the modern county boundaries. Section 21 of the Bill, to which I have already referred in the context of the preparation of an annual policing plan by the Commissioner, provides that the plan may include proposals to alter those boundaries.

Apart from those provisions, the Minister accepts that, at a more immediate and practical level, further action is required to deal with the growth in the phenomenon of anti-social behaviour. New legislative provisions are planned for inclusion by way of amendments to the Criminal Justice Bill currently before the House. There has been much ill-informed comment and speculation in the media about those proposals. The Minister is nevertheless satisfied that Members will agree that they provide a measured response to the problem and will alleviate the plight of ordinary citizens and families who are being threatened, intimidated and terrorised in their communities by local thugs. I should also mention that another amendment to the Criminal Justice Bill will deal with an issue raised by a Deputy about problems with obtaining search warrants at certain periods arising from a recent court decision.

The Minister was very encouraged by the general welcome given by the House to the provisions dealing with co-operation between the gardaí and local authorities. He adds that the precise composition and working arrangements for the joint policing committees will be the subject of further debate on the relevant sections of the Bill. He believes that the legislation should not be over-prescriptive as to the nature of the representation of any of the parties involved, so as to allow maximum flexibility, within overall parameters, to cater for the infinite variety of local situations. However, he is willing to consider highlighting the role of local policing committees or fora in the legislation. That matter has been impressed upon him by the chairman of the National Crime Council. It was also referred to by several Deputies during the course of their contributions. The issue was also considered by the Joint Committee on Justice, Equality, Defence and Women's Rights during its review of community policing generally, and whom the Minister met, and he looks forward to receiving its views on the matter in due course. I understand from a recent article in The Irish Times that the committee's report will be published before the end of this month.

A point was made about the possibility of the appointment by Government of non-gardaí as senior officers of the force. The existing position is that Garda superintendents, chief superintendents and assistant commissioners are all selected by means of an internal Garda competition based on merit before being appointed by the Government. The Bill maintains the existing position and goes further. Following an Opposition amendment in the Seanad, to which the Minister agreed, all such appointments must, henceforth, be in accordance with regulations. That makes it clear that the selection process will continue to be merit-based without political involvement. The real significance of senior ranks being appointed by the Government is that they can only be dismissed by the Government.

With regard to the establishment of the Garda ombudsman commission, a question was raised about why it has to be a three-person body. All options were considered, and the Government came down in favour of a three-person commission. While I appreciate the point about the advantages of having a single recognisable person identified with the job, there may be advantages in depersonalising the commission. As the Minister said in the Seanad, we do not question which members of the Supreme Court hand down particular judgments, nor do we ask who the three members of the Revenue Commissioners are. I am sure the three-person composition of the commission will not be a disadvantage or serve to reduce its status or effectiveness.

An ombudsman-type institution does not have to have a single person in charge, and it is not unprecedented internationally. There are examples of ombudsman-type bodies with more than one person sitting on them. Indeed, the new organisation that will deal with complaints against the police in England and Wales, the Independent Police Complaints Commission, which replaces the Police Complaints Authority, has a chairman and two deputy chairmen. Providing for three members increases the chance that an internal debate will take place before any decision is made. In those circumstances, the commission is likely to act deliberatively and to have thought through carefully the consequences of its actions. There is also the advantage of the workload being shared.

In response to Deputy Stanton's technical points on this subject, the Minister has asked me to say that the Bill proceeds on the assumption that the three members of the commission will, as far as possible, act collectively as a collegiate body. One of the key provisions relating to the commission is that it is an independent body. It would be inconsistent with that policy if a member were precluded from producing a minority report should he or she wish to do so. Again, arising from its independence, it will be a matter for the commission to arrange how it conducts its business.

As for the question of the removal of members of the commission from office for stated misbehaviour, among other things, as provided for in section 61(2), that is one of the formulae used in such cases. Effectively, it is a matter for both Houses of the Oireachtas. As to inserting a specific provision in the Bill providing that a criminal record will bar a person from being appointed as a member of the commission, we can take it that no Government would consider proposing a person for nomination and the passing of the necessary resolutions by both Houses in those circumstances.

The Minister mentioned in his speech that he thought he might hear it said that the Bill provides for gardaí to investigate gardaí, although he did not expect to hear it so soon after he had explained this is simply not the case. Some further elaboration might assist in clarifying the position. The provisions of the Bill follow very closely the relevant provisions — sections 56 and 57 — of the Northern Ireland Act 1998, which established the Police Ombudsman for Northern Ireland. Those provisions in turn were developed from the recommendations in the 1997 report by Senator Maurice Hayes. Senator Hayes concentrated on three main models for investigation of complaints against the police following his comprehensive study of the various systems in operation in other jurisdictions around the world. Those were investigation by the police with external oversight, complete handling and investigation of police misconduct by a body external to the police service and a combination of police investigation with external oversight for more minor matters, with more serious ones being investigated by the external body. The first of these more or less corresponded with the system then in place in Northern Ireland, England and Wales. Some variations of it were found in the Garda Síochána Complaints Board in this jurisdiction, which was provided for in the 1986 Act, and in similar bodies in New Zealand and Ontario.

As regards the second option, complete handling and investigation of police misconduct by a body external to the police service, it is significant that Senator Maurice Hayes said he knew of no example of an external body investigating completely all cases and recommending civil or disciplinary action. A quote from the relevant paragraph of the Senator's report is illuminating. He noted that such a system:

would remove the responsibility completely from the police [even for the most minor cases]. It would do this at a time when there is a need and a drive, not least from within the police, for greater management responsibility in the police service. It would also present difficulties in terms of finding sufficient investigating officers to manage the workload. There would also be problems in breaking into the police culture. Such a body is unlikely to gain police confidence easily and this in turn is bound to affect its credibility.

The final option involves a combination of police investigation with external oversight for minor matters and investigation by the external body for more serious matters. Under this option, informal resolution may also be employed by the police for minor matters. Senator Hayes concluded that the police complaints service in Northern Ireland should ideally adopt a variant of this system. He also said that in view of the lack of confidence in the system in that jurisdiction, the ombudsman should probably investigate all complaints other than those considered suitable for informal resolution.

Senator Maurice Hayes recommended that complaints should be categorised under three headings. The first category is serious complaints which may involve criminal action, such as the death or serious injury of a person while in custody. The complaints body should have a statutory duty to investigate such complaints. The second category relates to substantial but less serious complaints which might be remitted to the police for supervised or unsupervised investigation and report, at the discretion of the complaints body. The third category is complaints about quality of service, which would be remitted to the police for informal resolution.

Given that the Minister has been exhorted to follow as far as possible the set of circumstances that obtains in Northern Ireland, it is strange that Deputies have suggested that the approach in this jurisdiction should depart radically from the approach adopted on the other side of the Border. Sections 83 to 91 of the Bill outline the ways in which complaints against the Garda will be investigated by the independent ombudsman commission. In cases of death or serious harm to a person, the ombudsman commission will investigate the matter. That applies even if no complaint has been made. The commission will be able to require the Garda Commissioner to investigate the matter subject to certain conditions and safeguards in other cases, or it can directly supervise the Garda investigation, with certain conditions attached. In that context, the Minister does not see how one can allege that the Bill provides for gardaí to investigate themselves. It clearly provides for the ombudsman commission to retain control and direction over all proceedings.

The Minister has heard people suggesting on a number of occasions since the Bill was published, including in the House during this debate, that the Bill requires the ombudsman commission to give notice to the Garda Commissioner of its intention to search a Garda station. That suggestion is completely inaccurate. As the Minister said at the start of the Second Stage debate, the provision relating to the giving of notice will apply only in the cases of certain Garda stations which will be designated in regulations to be made in accordance with section 117.

The Bill strikes a careful balance between the need for adequate information-gathering powers and the importance of preserving secrecy in the case of sensitive security-related matters. Section 91(5) allows the Minister to give specific details about the matters to be excluded. Any exclusionary direction by the Minister for Justice, Equality and Law Reform is subject to a review of the operation of the provisions by a designated judge of the High Court, who reports to the Taoiseach, who in turn lays such a report before each House of the Oireachtas.

It has been suggested that the establishment of a police authority would obviate the need for a Garda inspectorate. The Minister has made clear his position on the establishment of such an authority and I do not propose to add to that. It has also been proposed that the ombudsman commission should perform the functions proposed for the Garda inspectorate, to avoid the duplication of functions. In that context, I remind Deputies of the Minister's comments about the background to the inspectorate, which is being established in response to a recommendation in the first report of the Morris tribunal, which was that the Department of Justice, Equality and Law Reform should be empowered by knowledge.

The proposed Garda inspectorate is designed to ensure that independent and objective information on matters relating to the functioning of the force will be available to the Minister and the Department and that potential gaps in information or knowledge will be addressed. The inspectorate will be primarily concerned with operational matters and issues of administrative systems. The ombudsman commission, on the other hand, will be primarily concerned with investigations into the conduct of individual members of the force while performing their official duties. The Bill provides that the ombudsman commission will be able to examine some of the force's practices, policies and procedures. While that function may lead to confusion about the differing roles of the commission and the inspectorate, I remind Deputies that the commission's role in this area is directed at practices, policies and procedures which lead to complaints from the public. The commission will not be concerned with such matters in any other context.

The Minister accepts that there is potential for the investigations or examinations of the ombudsman commission and the inspectorate to coincide. Just as the commission and the Garda Commissioner will be required to draw up protocols when dual investigations into criminal matters arise, the commission will have to agree protocols with the inspectorate when their respective investigations or inquiries coincide.

Reservations were expressed about the independence of the ombudsman commission if existing administrative staff of the complaints board are allowed to work for the new body. This matter is addressed in section 64. Practical considerations relating to the provision of expertise to the commission need to be considered in this regard. The Minister has asked me to emphasise that this is a matter of administrative functions rather than the commission's investigatory functions. The commission's designated officers will be its permanent investigative staff. They will be charged with conducting the investigations that the commission determines should be taken, particularly in the most serious cases. Such cases will typically involve death or serious harm, or other serious matters such as fraud or corruption. It is intended that the commission will seek to maintain a balanced and diverse staff of trained investigators from a wide range of backgrounds. Such staff could be former officials of the Customs and Excise service, tax investigators, company law inspectors, accountants or lawyers. The balance will change over time.

The Minister agrees with the recommendations of Senator Maurice Hayes's report on the question of whether members of the Garda should be allowed to take up positions with the ombudsman commission. As their presence might be considered by the commission to be so important for its success that it would outweigh and negate possible credibility issues, it would be wrong to rule them out. It should be borne in mind that the commission's staff will be officers of the commission and, therefore, under its direction and control. Policemen are allowed to become investigators in other systems throughout the world, for various reasons. As Senator Maurice Hayes noted in his report, the overriding consideration is the real possibility that the body will not be as effective as it could be if it does not employ people who are familiar with and able to break into the culture of the police. That would affect the credibility of the system.

The police ombudsman in Northern Ireland has not yet opted to recruit members of the PSNI. As I said, that relates to the particular circumstances in that jurisdiction. The senior investigation officers in the Northern Ireland police ombudsman's office are drawn from other police services, most notably and for obvious reasons from various police forces throughout the UK. Not only do they take charge of investigations but, crucially, they also help to train the non-police investigative staff to the levels required to conduct criminal investigations. If the ombudsman commission wishes to engage the services of policemen drawn from the senior ranks of foreign police services, what objection is there to it recruiting such staff from the ranks of senior Garda officers here? It has been said that the positions on the ombudsman commission should be publicly advertised. It is too early to say what the position will be in this regard. It will be carefully considered when the Bill has been enacted.

It was asked why we do not establish an intelligence service if State security is so important. There is no need to do so. The Garda Síochána has been responsible for this service since the foundation of the State.

Some Deputies argued that the time limit for submitting complaints is too short or should be capped. There were differing opinions on this matter. Views were expressed that the time limit of six months as prescribed in section 76 is too short while others considered that there should be an upper limit of 12 months. The approach adopted in the Bill is fair and strikes the right balance between the need to have a reasonable period to lodge a complaint while allowing the ombudsman commission discretion to extend the period if it considers that there are good reasons for doing so.

Any discussion on the matter of resources would be premature at this point. In keeping with the policy as reflected in the Bill, underscoring the independence of the ombudsman commission, the issues going to the heart of the resources question will only become clearer when the members of the commission are appointed.

It was said that it is not clear that a complaint made by a member of the public at a Garda station under section 75(2) will be sent to the ombudsman commission unless the complainant requests it. The Bill as a matter of policy provides for all complaints to be sent to the ombudsman commission in the first instance so there is no need for complainants to request that explicitly. Section 75 sets out the ways in which complaints can be made to the ombudsman commission, either directly to the commission or by way of the Garda Síochána for forwarding to the commission. It is clear from section 77 that the Garda Commissioner or any other member of the force, having received a complaint, must send it to the ombudsman commission. The involvement of the ombudsman commission in a supervisory function should be mandatory in all cases rather than discretionary.

Deputies should not lose sight of the fact that the Garda Commissioner is responsible for all matters relating to discipline within the Garda Síochána. The provisions of the Bill dealing with the Garda Síochána ombudsman commission have been drafted with that very much to the fore. They are also designed to provide for a flexible approach on the part of the commission and to allow it to exercise its own discretion as to how investigations are to be carried out. This is a reasonable and balanced approach which takes account of the Garda Commissioner's responsibilities as chief executive of the force for the quality of service provided by the members of the organisation.

Furthermore, this approach is strictly in accordance with the procedure recommended in the Hayes report. This envisaged that in the third category of complaints identified — the less serious complaints dealing with quality of service type matters — the police themselves could do the investigation.

It was asked if there should be one ombudsman, North and South, to hear complaints about the PSNI and the Garda Síochána. That could not be allowed to happen under any circumstances. No case can be made for such an approach.

A doubt was expressed by some Deputies about the adequacy of training for members of the volunteer force and questions were raised as to whether volunteers would have the same two-year training regime as full-time members of the Garda Síochána. The Bill provides in section 14 that volunteer members will have the prescribed training as set out in proposals by the Garda Commissioner to the Minister which will then be set out in detailed regulations. These regulations will also cover terms and conditions of service. Accordingly, the detail of the training arrangements will be settled in that context. Most emphatically, this is not a form of policing on the cheap. It is a valuable adjunct to policing and it is well recognised and developed as such in other countries. Why should we be any different?

Reference was made to section 16 which concerns the code of ethics, and it was mentioned that the Bill does not contain a definition of human rights. Human rights is a term which means different things to different people and is trammelled with popular misconceptions, false expectations and prejudices. Generally speaking, it is a term which embraces what may be termed the classic civil and political rights as covered by the European Convention for the Protection of Human Rights and Fundamental Freedoms. The Constitution in Article 40 refers to "fundamental rights". The Bill places emphasis on the importance of upholding human rights in the performance by the Garda Síochána of its functions. Section 15 provides for a revised form of declaration for persons joining the force which specifically refers to the need to have regard for human rights in carrying out policing duties. In the light of the passage of the European Convention on Human Rights Act 2003, which came into operation on 31 December of that year, it was not necessary to define what is meant by human rights.

With regard to the establishment of a code of ethics for the Garda Síochána, the purpose of the code will be to lay down standards of conduct and practice for members. Deputies might have noticed that in establishing such a code, provision is made for the Garda Commissioner to consult the Human Rights Commission. The Minister is not sure about the need to include the National Disability Authority in the list of bodies to be consulted as it would be caught by the provision in section 15(3)(g), but he will consider the point between now and Committee Stage.

The recent human rights audit of the force as published by the Commissioner has focussed attention on the need for the Garda Síochána to develop its response to the training and development of its members in this fundamental area. The provisions of the Bill provide the necessary statutory mechanisms for this purpose.

The question of gardaí having access to the ombudsman commission for the purpose of making complaints against other members was raised with me by the Garda associations in the context of discussions about the existing grievance procedure. The ombudsman commission provisions of the Bill are directed at restoring public confidence in the complaints system and on policy grounds they cannot be stretched to deal with complaints by members against other members. The provisions in the Bill which allow the ombudsman commission to undertake investigations of its own volition or at the request of the Minister, which are to be found in sections 94(4) and (5), respectively, are sufficient to deal with the issue of complaints by members against other members.

It may be that special provisions outside of this Bill may be needed to deal with this issue. It is possible that the matter could be addressed by Garda management in this form or that specific legislation along the lines of that recently enacted for the Defence Forces could be considered.

Will the ombudsman commission be able to investigate circumstances where members of the force are willed properties by elderly persons? This will be a matter for the ombudsman commission to decide. The key issue is whether the conduct of the member concerned would constitute misbehaviour.

Deputies called for more information on ministerial directives, saying that they give too much power to the Minister. This Bill, far from being a vehicle for political interference, is the reverse. Clearly, it is entirely improper for the Government to try to influence the course of a Garda criminal investigation or prosecution. For the first time, this Bill in section 22(4) gives statutory force to the independence of the Garda in this area.

It is entirely proper, however, for the Government to give directions to the Garda Síochána to implement policies in the public interest. The police are part of the Executive arm of the State, not an independent agency. If examples from other countries are required, section 5 of the Royal Canadian Mounted Police Act provides that the RCMP Commissioner is under the direction of the Minister. Section 40 of the British Police Act 1996 provides that the Home Secretary may, in specific circumstances, give directions to the relevant police authority to take such measures as may be specified in the direction.

The Garda Síochána Bill will provide for the first time a clear statutory definition of the respective roles of the Minister and the Commissioner. The Bill represents a balanced mechanism for accountability to the Government and Oireachtas while providing the Commissioner with the necessary authority to exercise his policing functions efficiently and with efficacy.

Section 32(5) deals with privilege and redress in circumstances where a person makes a statement which later proves to be wrong. This provision was introduced in Seanad Éireann in the context of changes to the joint policing committee provisions of the Bill. It is modelled on the provision in section 104 which deals with qualified privilege for certain statements and publications of the Garda Síochána ombudsman commission. In the light of Deputy Stanton's comments, I will look at these provisions again in consultation with Parliamentary Counsel.

See this speech in context