Pat Rabbitte (Dublin South West, Labour)

I move:

That Dáil Éireann,

—conscious of the widespread and justified public disquiet at the findings of the first and second reports of the tribunal of inquiry into complaints concerning some gardaí of the Donegal division;

—appreciative of the work of Mr. Justice Morris and of the significance of his recommendations for the future operation of the Garda Síochána;

—noting in particular the tribunal's findings:

—of appalling management of the Garda Síochána coupled with the manipulation of facts and circumstances to present to Garda headquarters and to the world at large an untruthful appearance of honesty and integrity in the Donegal Garda division;

—that the scandalous situation detailed in its Second Report was caused by a combination of gross negligence at senior level within the Garda Síochána, amounting to the criminal negligence standard in law, and a lack of objectivity and corruption at lower levels within the force;

—that, if there was a lack of proper management at senior level, corruption at middle level and a lack of review throughout the force, similar such situations could occur again; and

—that there will be no possibility of progress for the Garda Síochána until the infighting between officers, the failure of gardaí to account immediately and truthfully for their duties and the consequent effect on good morale are all fully addressed and there is in place an authority which is empowered to react;

—conscious of the recommendation of the tribunal that, at a minimum, the provisions of the Garda Síochána Bill 2004 should be reviewed by the Oireachtas so as to satisfy the legitimate disquiet arising from the lack of any independent body to receive legitimate concerns about Garda behaviour;

—aware of the need for fundamental structural reforms to ensure a policing service that is both democratically accountable and compliant with the rule of law; and

—convinced of the need for systematic independent examination and review of the structures and procedures of policing in the State and of the governing legislation, with a view to recommendations for reform;

calls on the Government to establish an independent commission to inquire into policing in Ireland, with the following terms of reference:

(1) To consult widely, with both members of the public, public bodies and non-governmental organisations and, on the basis of its findings, to bring forward proposals for future policing structures and arrangements, with particular regard to the need to ensure that;

(a) policing arrangements are such that the State has a police service that can enjoy widespread support from, and is seen as an integral part of, the community as a whole;

(b) the Garda Síochána is structured, managed and resourced so that it can be effective in discharging its full range of functions, including structured co-operation with other police forces;

(c) the education and training of members of the Garda Síochána is of the highest order;

(d) there is a transparent and impartial mechanism for promotions and appointments at all levels of the service;

(e) the police service is delivered in constructive and inclusive partnerships with the community at all levels;

(f) the legislative and constitutional framework requires the impartial discharge of policing functions and conforms with internationally accepted norms in relation to policing standards; and

(g) the Garda Síochána operates within a clear framework of accountability to the law and the community it serves, so that:

(i) it is constrained by, accountable to and acts only within the law;

(ii) its powers and procedures, like the law it enforces, are clearly established and publicly available;

(iii) there are open, accessible and independent means of investigating and adjudicating upon complaints against its members;

(iv) there are clearly established arrangements enabling local communities, and their political representatives, to articulate their views and concerns about policing and to establish publicly policing priorities and influence policing policies, subject to safeguards to ensure police impartiality and freedom from partisan political control;

(v) there are arrangements for accountability and for the effective, efficient and economic use of resources in achieving policing objectives; and

(vi) there are means to ensure independent professional scrutiny and inspection of the police service to ensure that proper professional standards are maintained.

(2) To complete its consultations and deliberations and to report its findings and recommendations to the Houses of the Oireachtas in as efficient and economical a manner as possible and at the earliest possible date consistent with a fair examination of the matters referred to it and, in any event, no later than 18 months from the date of its establishment."

I wish to share time with Deputy Costello.

In moving this motion in my name and that of my Labour Party colleagues, I am struck by the fact that in its 80-year history the Garda Síochána has never been the subject of a root and branch review. The force was formed in circumstances of understandable speed and stealth and its governing legislation, which somewhat post-dates its establishment, did not then or at any time since receive anything remotely approaching normal consideration within the Oireachtas, let alone an input from other stakeholders in civil society.

Even the most famous of various ad hoc reports, the Conroy report of 1970, was produced by a committee appointed by the Garda Commissioner to report simply on pay and conditions. As Professor Dermot Walsh points out in his 1998 book, The Irish Police, none of the reports of committees and consultants, either collectively or individually, offers a comprehensive analysis of some of the most basic aspects of the Garda Síochána today, namely, its status, structure and management.

Our first reason for proposing this review is a simple one, it has never been done before. I can think of no other institution so central to the life of the nation and its citizens that has escaped sustained, focused and coherent analysis for so long. It is about time we got around to a structured, participative debate on society's need for policing and on the design of the service we should put in place to deliver on those needs.

I stress that the debate must be participative, including not just Ministers and public representatives but also the police and those who are policed. In that regard, we make no apology for modelling our proposed terms of reference on those of Patten but also for proposing its methodology — a structured series of public meetings throughout the State to engage people at neighbourhood level in debating these vital issues.

I am aware this motion will, nonetheless, attract an almost inevitably hostile reaction in some quarters. When a group was appointed in 1996 to review the efficiency and effectiveness of the force, its consultants suggested that the review group should adopt a "blank sheet" approach to the Garda Síochána, along the lines of the Patten commission's work in Northern Ireland. At a conference of Garda chief superintendents, one of the senior members replied by stating:

This force has too proud a history to be treated in such a manner. It has contributed enormously to the building of this nation and continues to do so.

Until recently, the Garda Síochána was one of the few remaining public institutions we criticised at our peril. We could point to wrongdoing, but only as long as we immediately insisted that such breaches were exceptional. If fault was exposed, we were assured — we repeated the assurance — it lay at individual level. No-one queried whether such faults had become ingrained or institutionalised.

In her speech last Friday, Deputy O'Donnell quoted a statement made in 1922 by the first Commissioner of the Garda, Michael Staines. He said: "The Garda Síochána will succeed, not by force of arms or numbers, but by their moral authority as servants of the people." The Labour Party borrowed that saying for the cover page of its document proposing a Garda authority and ombudsman almost five years ago. Commissioner Staines's assertion is important because it highlights a basic point. In a civilised democracy, the most precious asset any police service can have is public confidence in its ability and its integrity. However, in this country that asset is diminishing.

The Garda Síochána still attracts a share of public support, respect and even affection, but not as much as it used to and even less as a result of the continuing fall-out from the Morris tribunal. Between 1990 and 1998 there was a 90% increase in complaints against the Garda Síochána. In 1998, for example, when 1,400 complaints were made against members of the Garda Síochána, only six were referred to a tribunal. The chairman of the Garda Síochána Complaints Board, Gordon Holmes, stated that public confidence in the Garda is at, or near, an all-time low. He said that, while the majority of gardaí are "first class", the public perception is that officers who behave less than honourably are not being adequately investigated and punished. Morale within the force is also, by all accounts, at an all-time low.

We do the force no favours by conspiring to gloss over these facts. When news emerged of the Commissioner's decision to transfer some gardaí named in the second Morris report to Dublin, analogies were made with the Roman Catholic Church's treatment of abusing priests. The analogy is an apt one because in both institutions there is an aversion to the public gaze and a belief that some things are better kept from public view. The belief is that one only compounds the original wrong by making it known since publication attacks the belief system of what used to be called the "simple faithful".

That sort of delusional, self-serving craving for secrecy and cover-up never succeeds and is ultimately utterly destructive of any remaining public inclination towards trust. The reality is that a chronic condition within the force has now become critical. It was once possible to argue for an independent review of policing simply because such occasional reviews are by definition a good thing. It was possible to argue that a commission on policing had been undertaken in Northern Ireland and its proposals not only made sense in the context of that jurisdiction but had intrinsic merit and were worth examining here.

The situation now is that a review is not just timely but desperately urgent. It is not just a question of copying from the neighbours because what they do seems to work quite well, but of coming to terms with the fact that what we do is not working. As the Minister, Deputy McDowell, put it last Friday: "It is a force we all support but it has serious defects exposed in its constitution, its management and its ethics". It is, again according to the Minister, suffering from "a collapse of morale and, as Mr. Justice Morris says, a collapse of discipline and accountability structures". That is as good a list as any of the issues to be looked at by an independent commission: defective constitution, management and ethics, and a collapse of morale, discipline and accountability.

I make no bones about what the principal submission from my party to a commission on policing would be and what I hope that commission's principal recommendation would be, namely, that we need a Garda authority and a Garda ombudsman. This is so for two compelling reasons. The first is to secure real and effective accountability from the Garda Síochána, something the Minister and his predecessors have signally failed to do. The second is to protect the Garda Síochána from political interference and permit the genuinely independent investigation of legitimate complaints against gardaí.

There is plenty of other material for a commission to consider, much of it for the first time. The Minister told us last Friday he had provided the force with a proper written constitution for the first time in 80 years, which he called a "new charter of accountability and responsibility". Let us consider his charter. First, for all his repeated and insistent references to the issue, the Minister's Bill says absolutely nothing about the security and intelligence aspects of the force's remit — are these too secret to legislate for? I had some words to say in this regard last Friday. Second, although most people would consider it to be a defining characteristic of the Garda Síochána, this constitutional charter has nothing to say about its unarmed status. The Minister could, under the Bill, direct the Commissioner to arm every garda on the beat. Although the House could deplore that directive, there is nothing in law it could do to defeat it. So much for accountability to the Dáil. Third, there is nothing in the Bill on even basic and long-standing structures within the force such as, for example, the division between uniformed police and detectives. Fourth, most fundamental of all, the Bill is silent as to the status in law of the individual members of the force.

Why does the Minister insist in section 41 that the State will be liable for wrongs done by individual members only in performing their functions under this Bill and not their functions under other Acts or at common law? This question is particularly pertinent given that this Bill does not confer functions on individual members. Why does he insist that the statement in section 7, outlining the functions of the force, has no effect on the powers, immunities, privileges and duties that individual members of the force have under all those other Acts and at common law? He must know that an important and outstanding legal issue, dealt with in some detail by Dermot Walsh but still unresolved, is the extent to which gardaí can consider themselves to be independent office holders — peace officers rather than employees of the force or of the State.

This issue goes to the heart of the debate about the duty of gardaí to account to their superiors. If gardaí are, even occasionally, independent office holders, how can they be directed as to what to do or called to account for how they do it? Yet, the Bill seeks to preserve this arcane common law status of peace officer rather than to rationalise it.

There is plenty of material for a commission on policing, well before one proceeds to issues of interaction with and accountability to the community. However, I will return to our central submission, the proposal for a Garda authority and a Garda ombudsman. By an ombudsman, I mean an individual with independence, capacity and resources to react swiftly and intervene immediately — to be able to react, if need be, to the lunchtime news and to descend on or preserve a scene. One cannot, with the best will in the world, find that capacity in a committee. Nor can one clearly identify where responsibility is reposed.

When the Minister was asked why he still insists the commission must be multi-member, his reply insulted the intelligence of his audience: there had to be cover for the holidays. His answer was absurd, both at policy level and the level of mechanics. A simple tweaking of the power to delegate, which is already provided for in the Bill, would enable temporary absences to be covered. It is impossible to avoid the conclusion that those who framed this legislation want a Garda ombudsman commission that will proceed at a deliberate and cautious pace because they want to be able, quite literally, to keep ahead of the posse.

The reason we need real and effective Garda accountability is because the force and its members possess extraordinary powers over the rest of us and those powers can be and are abused. There are circles in which that simple proposition is not accepted. There are those who would be happy enough to let the Garda Síochána at it. They believe that most gardaí, most of the time, exercise their powers for the common good. They believe that, quite frankly, when gardaí abuse their powers their victims are mostly the sort of people who had it coming to them. We should not, as the Taoiseach would put it, get "weak kneed" if the Garda Síochána cut a few corners, so long as they are generally on the right track.

I do not accept that approach, particularly when it comes with the sort of macho posturing the Minister for Defence, Deputy O'Dea likes to specialise in, but for which he is so spectacularly unsuited. That Minister described as "weak", "mealy-mouthed" and "extraordinary" a statement by Deputy Joe Costello following the shooting dead of two attempted robbers in Lusk last month. What Deputy Costello said was that "where people die as a result of Garda action, there must be proper procedures for an independent investigation into such incidents". The fact that Deputy Costello was quoting almost verbatim from a judgment of the European Court of Human Rights, which is binding on the Irish courts, was neither here nor there so far as the Minister for Defence, Deputy O'Dea, was concerned. The notion that the same rules of law must apply in Lusk as in Loughall or in Gibraltar seems to mean nothing at all to him when there is a column to be written or a space to be filled.

Garda powers have been abused in the past and they will undoubtedly be abused in future. That is an inevitable fact of life, not just because it happens in every walk of life but because it is particularly likely to happen in this walk of life where the stakes are high and the playing field is not level. The temptation is to red-circle cases like the Birmingham Six or the fallout from the Sallins mail robbery, including the Nicky Kelly case, as momentary lapses from a generally high standard. After all, the Kelly case occurred when there was a "heavy gang" operating within the Garda Síochána. It operated not just outside the regular structures of the force but outside and in direct breach of the law. Before one writes off the heavy gang as only of historical interest, let us see what connections in personnel and methodology have led to more than one recent, infamous, retracted confession being obtained in Garda custody.

Questioning in Garda custody is of its nature both secret and compulsory. These two factors create an environment in which the suspect can become a subject of oppression and can be induced to make a statement. Over 100 years ago a judge used straightforward language to put the issue in perspective. Justice Cave in R. v Thompson (1883) said:

It is remarkable that it is of very rare occurrence for evidence of a confession to be given when proof of prisoner's guilt is otherwise clear and satisfactory; but when it is not clear and satisfactory the prisoner is not infrequently alleged to have been seized with the desire, born of penitence and remorse, to supplement it with a confession; and this desire itself again vanishes as soon as he appears in a court of justice.

More than a century later we had the case of Dean Lyons, who was accused of the brutal murder of two patients in Grangegorman in 1997, taken to the Bridewell, placed in a video and tape-recording suite and interviewed. In that interview, he admitted to every charge put to him. The transcript shows that he was confused and incoherent. He suffered from learning difficulties at school, feared authority figures and had a habit of confessing to things he had not done. His mother and father, who visited him in the Bridewell, said he appeared completely disorientated and was swaying and slurring his words.

After they left, Dean Lyons made another, written, statement and was then charged with the murders of Sylvia Shields and Mary Callinan. When this statement was made, there was no video or audio taping. This statement contained a chronologically correct narrative about the murders. Some of the information was known only to the real murderer and to the Garda Síochána. The written statement is in clear, mostly grammatically correct English. Dean Lyons had left school with partial reading and writing skills and he had a very limited vocabulary. On the basis of his confession he was charged with the murders.

Three weeks later, Mark Nash was arrested in Roscommon and also admitted to the Grangegorman murders, again giving information that was known only to Garda detectives. Mark Nash has been convicted of the Roscommon killings but, despite his confession to the Grangegorman murders, he has not been charged with them. Dean Lyons remained in prison for eight months before the State Solicitor withdrew the charges, giving no reason.

Three years after becoming Minister for Justice, Equality and Law Reform, Deputy McDowell has still taken no action to investigate this fortuitously aborted attempted miscarriage of justice. Concern about these cases does not come just from the usual suspects, namely disaffected cranks and agitators. Let us consider this voice from the coalface. Retired Circuit Court judge Anthony Murphy, who presided over criminal trials for Cork city and county for many years, told "Prime Time Investigates": "There have been occasions when the guards have committed perjury in my court". Mr. Murphy added that, when he heard confessions that were:

couched in Templemore phraseology . . . I had a simple rule about it. If there was a confession and nothing else, the man walked.

This boils down to an allegation from the bench of a concerted practice on the part of gardaí to pervert the course of justice yet we have heard no adequate response to this allegation since then. It might as well not have been made. Successive Ministers for Justice and their officials in the permanent administration have known about these cases but they have not seen it to be in their interests, or the public interest, to do anything about it.

Before the parties opposite get into childish tit-for-tat retaliation I am aware this party has had periods in Government. I know the Fine Gael-Labour programme for Government of 1982 included a commitment to establish a Garda authority. I would be interested to know when and how that commitment ran into the ground. The fact that nothing, or at any rate not enough, happened then is no excuse for inaction now.

What is required, as the then Minister for Justice Michael Noonan stated in May 1983, is "an appropriate balance between the need for proper control and accountability on the one hand and, on the other hand, the need for the force to be able to go about its work unhindered by undue interference from any source".

I accept and adopt Deputy Noonan's approach. There can be no question of surrendering control of the force to any body not answerable to this House, including the Director of Public Prosecutions, as the Minister for Justice, Equality and Law Reform, Deputy McDowell, and former Minister for Justice, Equality and Law Reform, Deputy O'Donoghue, tried to claim had almost happened. That allegation is just a distraction to draw attention away from the inaction on their watch. The two Deputies play word games about reports, synopses, summaries and appendices. The fact is they were told more than enough and soon enough but they tried, for as long as they could, to get away with doing nothing.

I also share Deputy Noonan's views on the need to protect the force from political interference. The reality is that the Garda Síochána has become one of the most politicised institutions in this State, including not just office politics or institutional politics but party politics. The Moriarty tribunal heard evidence last week about how a Taoiseach could arrange interviews with the chairman of the Revenue Commissioners for the benefit of one of his donors. We know that the same Taoiseach's Government exercised an utterly malign influence over the Garda Síochána right up to the level of the Deputy Commissioner with responsibility for national security. It was one of the most sordid episodes of our recent history, involving a flagrant violation of constitutional rights and a violation of the integrity of the force. Yet no one within the force shouted stop.

More jovial elements in the Fianna Fáil party could revel in the "pint or a transfer" culture but the Taoiseach was attempting to subvert public institutions, to create nothing short of his own, privatised police force that would serve his own, private purposes. That Taoiseach also had his own private bank, which the regulatory authorities either did not or could not touch.

At the same time the manager of Dublin county had his own private practice as a planning adviser, charging money to the developers he was meant to police. When the Garda Síochána failed to make progress in any of their investigations into planning scandals, they nonetheless felt obliged to record a ringing endorsement of the character of at least one of those being investigated, a former colleague of the present Taoiseach, along with a virtual apology for presuming that he could do wrong. Again, no one in any of those public bodies called a halt. To this day nobody from the public service has come out to give information.

The reason my party wants a Garda authority is the same reason it wants to see the long promised and much delayed Revenue Act, which is meant to protect the operational independence of the Revenue Commissioners. It is the same reason we want the Freedom of Information Act rescued and restored from the savage filleting it has endured at the hands of this Government. It is the same reason we want transparent, effective and properly policed planning legislation.

We believe in a public service that belongs to and is answerable to the public and that is incapable of being corrupted to serve private interests. There are those of a certain vintage, retired from politics or public administration, who routinely remind us that, for all this State's other defects, we at least have an independent, impartial and trustworthy public service — civil, police and military — of undoubted integrity. I do not know for how long they will continue to make that boast or how many exceptions they will have to admit, while insisting that exceptions simply go to prove the rule.

In all the investigations, inquiries, hearings, trials and reports that I can think of, there has not been a single instance of a public servant, local or national, who has been willing to go on the public record to expose wrongdoing by his or her political masters. We have not had an on-the-record whistleblower since the foundation of the State. The reality is that during the years in which one party has wielded power in this State, our public service has become more concerned with discerning its master's voice than with finding its own.

The Minister for Justice, Equality and Law Reform has a political philosophy which doubles up as a catchy election slogan: "You can trust any Government at all, so long as he and his party are in it, keeping a beady eye on the other lot, on behalf of the rest of us." I prefer to put my trust, in the words of John Adams, in "a government of laws and not of men". It is not sufficient, when one uncovers wrong, simply to remove the wrongdoers. One must examine the system and the processes which allowed that wrong to happen and which will, if left in place, permit similar wrongdoing to flourish and will enable future wrongdoers to escape culpability.

See this speech in context