Michael McDowell (Dublin South East, Progressive Democrats)

Whatever was in the draft order before the House, several Deputies commented that it was open to me to provide more ample terms of reference. It was perhaps an undue element of overcaution on the part of Deputy Costello and myself in raising this issue. The terms of reference will be wholly adequate to deal with the surrounding circumstances including the arrest and detention and the decision to prosecute Dean Lyons.

The Garda ombudsman commission has the same powers of Mrs. Nuala O'Loan, Police Ombudsman for Northern Ireland. There is a myth that the commission has lesser powers. The only difference is that in the South, An Garda Síochána acts as the security service of the State. The Garda Síochána Act provides for circumstances controlling their access to security records, whereas in Northern Ireland the police ombudsman has no right of access to MI5 or MI6 records whatsoever. There is no substantive difference in the powers conferred. In the Estimates for 2006, €10 million was provided for the commission compared with €2.5 million for the old Garda complaints board. The commission has received significant additional funding.

If the commission was up and running, calls for inquiries into cases such as this, the Rossiter case and others, would have been obviated. The sooner the commission is up and running the better. In the new year, I hope to take the relevant steps to get it going in a substantive way.

Deputies Rabbitte and Costello raised the need for a Garda authority. I have heard the arguments for this at some length. However, if there was a Garda authority, such as that in Northern Ireland, comprising political representatives elected on a d'Hondt principle and the great and the good selected by Government, who would answer to the House when matters went wrong? If I believe the Garda should be doing X,Y and Z but the Garda authority had a different view, who would settle the dispute? If the House cannot express its view and get real accountability through the Minister, is the establishment of a Garda authority such an advance? This is a fundamental philosophical question which has not been adequately answered by those who support a Garda authority. We will have other occasions to continue that debate.

As regards the nature of inquiries, the only sworn inquiries with powers of compulsion available to a Minister for Justice, Equality and Law Reform regarding any matter relating to the police are an old-fashioned tribunal of inquiry under the 1921 Act, which is about to be amended in accordance with a Bill published yesterday, a commission of investigation under the Act under discussion today which came into law on 18 July 2004, and statutory inquiries under the Dublin Police Act. Until late last year it was not possible to deal with inquiries such as that referred to in the motion except either under the Police Forces (Amalgamation) Act 1924 or a full-blown public tribunal of inquiry along the lines of the Flood tribunal. The legislation which has come into play for this inquiry is a halfway house between a statutory inquiry per simpliciter and a tribunal of inquiry and is the correct solution.

On the case under discussion, the conundrum has always been that two competing confessions existed for a short period and this created a dilemma for the Director of Public Prosecutions who was faced with two competing explanations for a crime which remains unsolved. I reiterate that this is a live case and if the cold case DNA forensic material comes to hand and makes it feasible to bring a case against an individual, it is the intention of the Garda Síochána to place the relevant evidence before the Director of Public Prosecutions for decision.

Some Deputies described as inadequate the Rossiter inquiry which is being held under the 1924 Act. I understand the inquiry is up and running and receiving full co-operation. As the Commissions of Investigation Act does not provide for public hearings, the only way in which the demand for full public hearings could be met would be to establish a full public tribunal of inquiry. It is desirable that we get the commission of investigation up and running under George Birmingham SC, that the Rossiter inquiry proceeds to completion under Hugh Hartnett SC and that the Garda Ombudsman Commission becomes operational as early as possible in the new year. It should be noted, however, that the commission must do preparatory work. It must have investigatory staff and buildings, establish protocols for carrying out its business with the Garda Síochána and make arrangements on the places in which it will detain people whom it arrests in Garda stations.

Certain Deputies criticised me for rushing through the Garda Síochána Bill. I was faced with the proposition that if I chose to wait until the ombudsman commission was in place before dealing with these kinds of materials it could be another year before the commission would engage seriously on these propositions.

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