Brendan Howlin (Wexford, Labour) | Oireachtas source

I move amendment No. 40:

In page 18, to delete lines 11 to 16 and substitute the following:“102A. (1) Where a disclosure relating to the Garda Síochána is disclosed to the Ombudsman Commission as a prescribed person under section 7of the Protected Disclosures Act2014in respect of disclosures so relating, it may, if it appears to it desirable in the public interest to do so, investigate the disclosure, even if the worker (within the meaning of that Act) making the disclosure is a member of the Garda Síochána.”.

Again, the Deputies opposite will recall that at the conclusion of the Second Stage debate I indicated that the priority must be that the legal framework presented in this Bill protect in all respects members of An Garda Síochána who wished to make protected disclosures under the legislation. On the basis of the Government's examination and decision making on this issue, it has been agreed to provide for what is termed the mainstreaming of An Garda Síochána for the purposes of the Bill. In other words, members of An Garda Síochána are subject to the legislation in exactly the same way as any other worker or employee. No further legal requirements apply to them beyond the provisions of the protected disclosures legislation. Section 19 and a number of associated technical amendments accepted on Committee Stage bring members of An Garda Síochána, including members of the Garda Reserve, fully within the ambit of the Bill. In short, members of An Garda Síochána will, for the purposes of making confidential reports, be treated in a similar manner to every other worker in the State and will have access, without exception, to all of the protections in the panoply of labour relations organisations as are afforded to any other worker.

Deputies will recall that the former Minister for Justice and Equality announced that the Garda Síochána Ombudsman Commission would deal with disclosures by members of An Garda Síochána. While section 19(1)(a), as approved by the committee, was intended to implement this policy approach, I am conscious of the comments made by Deputy Seán Fleming on Committee Stage that the wording might be misinterpreted and presented as ambiguous, notwithstanding my assurances to him and the clear Government decision that members of An Garda Síochána could make disclosures to GSOC and the fact that the effect of the amendment proposed to the Garda Síochána Act 2005 would be to allow this. In view of the points made by Deputy Seán Fleming and my reflections on them and on the basis of further discussions I have had with the Office of the Attorney General, amendment No. 40 is intended to address the Deputy's concerns. The proposed wording is, in fact, closely allied with what the Deputy suggested on Committee Stage and is now proposing.

In response to amendment No. 41 - the "may" versus "shall" issue we also discussed - in regard to that part of the legislation relating to the investigation of a matter by the Garda Síochána Ombudsman Commission, it states that where GSOC receives such a complaint, "it may, if it appears to it desirable in the public interest to do so, investigate any disclosure". The view of the Deputy is that it should read " it shall...". In the first instance, as I said on Committee Stage, we have set up a completely independent investigative organisation, GSOC, and the House is now of a mind to give it even greater independence and more authority as an independent investigative body of An Garda Síochána. Therefore, it must be allowed to exercise that independence and discretion in a manner that it chooses, rather than it being prescribed by the House. Without this discretion, the regulatory body is put in a position where, irrespective of its assessment, it is obliged to take a particular course of action. That is not right. I have thought about the issue and what the Deputy has said. If we truly believe we want to have an independent oversight body, we should not say that, whatever its conclusion is, it "shall" do this. That is a view which has been sustained by my reflections in the last while.

In the case of this provision, the Office of the Attorney General has advised that once a matter has been determined by the commission to be in the public interest, there is obviously an onus on it to carry out such an investigation. On balance, I hope the Deputies will agree with me that if we are serious about creating, maintaining and allowing a robust independent oversight body, we should not give it directions in law; we should allow it discretion to make that determination.

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