Seán Fleming (Laois-Offaly, Fianna Fail) | Oireachtas source

Therefore, if I have a problem with amendment No. 41 not being moved, I will have to oppose amendment No. 40 because I will not be able to move amendment No. 41.

I thank the Minister for considering this matter, on which we had a detailed discussion on Committee Stage. There are many important issues to be discussed today and further amendments before we finish the debate. This amendment has a resonance among the public because if this legislation does not stand the test when it leaves this Chamber and has been signed by the President such that it affords protection to gardaí, it will be seriously diminished. That is why I brought forward a specific amendment on Committee Stage, on which we had a detailed discussion. I note that while the Minister has gone some way towards changing the wording, he has not changed the effect of the legislation.

Both amendments seek to delete lines 11 to 16 on page 18. While I will not go over everything I raised on Committee Stage, I need to refer back to it. The section, as presented on Committee Stage and which we are now seeking to amend, commences with the words: "If the Ombudsman Commission is prescribed...". I had a big issue with the word "If" because it was not definite. We moved on to the second element, where the Bill stated: "if it appears to it desirable in the public interest ... GSOC may investigate". People want to be sure in a case where it is desirable to investigate in the public interest; we should not shilly-shally. It is either in the public interest that an issue be investigated or it is not. It is not good enough to say there is a matter to be investigated in the public interest, but we do not feel like doing it.

People want to have absolute confidence. It is ironic. Yesterday, the Minister published a report about accountability in the public service, the theme of which was making the public service more accountable, yet here we are saying that even when matters are in the public interest, the Minister does not necessarily want public accountability. It is a case of perhaps we will or perhaps we will not. That is not good enough and runs counter to the theme of what the Minister has said on other occasions and in his press release yesterday about making the public service more accountable. To say "Even if it is in the public interest to investigate a matter, we do not really have to do it," allows a public service body off the hook. That is not good enough in this day and age. I will come back to that point in further detail.

We are discussing amendments Nos. 40 and 41. Amendment No. 41, which is in my name, states: "the Ombudsman Commission is prescribed under section 7 of the Protected Disclosures Act 2014 in respect of disclosures relating to the Garda Síochána", so I was absolutely specific - no ifs, buts or maybes. The Minister has come back with his amendment, which states:

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 7 of the Protected Disclosures Act 2014 in 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.".

Let us see what section 7 says, because amendment No. 40 refers specifically to it. It states that the Minister may by order prescribe bodies. Instead of stating that it is prescribed, the amendment now provides that the Minister may prescribe. It is still not definite. The Minister has taken out the word "if" and put in the word "may" by referencing section 7. It is still not definite. The Minister has gone a bit of the way on one of the issues I sought to address by taking out the word "if", but he has effectively substituted the word "may". The effect of this section is that the Minister may designate the Garda Síochána Ombudsman Commission as a prescribed body and, even if a matter that requires investigation is in the public interest, the Garda Síochána Ombudsman Commission may investigate it. Those two "mays" are not good enough. We want definitive positions in respect of those matters.

The Minister spoke about mainstreaming, with which I do not disagree, but it is not possible to mainstream it because of all the people in the public bodies, the Minister has picked out a particular section and a particular reference to deal with. The Garda Síochána and the Garda Síochána Ombudsman Commission are then dealt with separately in this legislation. Yes, the Minister wants to make them as mainstream as possible, notwithstanding the fact that they are being dealt with separately in the legislation.

Saying that the Minister may prescribe a body is not strong enough. We have no assurance when we leave the House after this legislation is passed today, having gone through the Seanad, that it will be so prescribed. The reason I raise that particular issue, of which the Minister is aware, is because when we were here last week, I asked him about legislation he had passed since coming to office that he had not yet commenced. We will not go into the case of the former Minister for Justice and Equality, Deputy Shatter. Legislation was passed but it was not commenced. The Minister went on to tell us that one of the most long-standing and important pieces of legislation that went through his Department - the Construction Contracts Act - has still not commenced even though it was passed a year ago. The Minister is asking us to accept that he will do something when the legislation just gives him the option of doing it. When he was given the option in respect of that important piece of legislation, he still did not commence it. In respect of commencing legislation, we regularly listen to statements from the Minister about stimulus packages, construction and getting projects moving, but we then find that the Construction Contracts Act has not even been commenced by the Minister, for a variety of reasons. The exchange with the Minister about legislation that has been passed in his Department but not yet commenced is directly relevant to this section, because section 1 states that it will come into effect on a day appointed by the Minister, so it does not come into immediate effect upon signing by the President. The Minister may or may not choose to do so. If the Minister can give me an exact date by which he will sign and so prescribe those organisations under section 7, it would be a big help to this debate.

Looking at the performance of this Government in respect of commencing sections, as the Minister proposes to do here in section 7, I put the same parliamentary question to every other Minister about legislation passed in the past three years and items not yet commenced. The range is staggering - child care, social welfare and foreign affairs legislation. I mentioned one relating to the Minister's own Department. There are a litany of cases in which legislation has been passed in this House but has not yet been commenced by the Government, having been debated at length in the House. The public probably presumes that this legislation is in operation but we find that this is not the case. There is a big lacuna in this regard - a gap in confidence as to whether, when the Minister is given the power to do something down the road, he will do so in a timely manner. The practice we have seen here in the past seven days does not inspire confidence in that regard.

Instead of the phrase "if the Garda Síochána Ombudsman is prescribed", we now have "the Minister may prescribe". This is not a sufficient advance and is not definitive. My wording is more definite and superior. The wording of the amendments match very closely, except for the opening line and one other word - "shall" versus "may". My amendment is saying that the Garda Síochána Ombudsman Commission is prescribed under section 7. When the Minister comes to respond, I will be asking him to say that he accepts the merit of removing doubt, wants to make the public service more accountable, and does not want to provide any opportunities for ifs, mays and buts or for the public service to weasel out of its responsibilities, particularly since he has acknowledged in the legislation that the matter of GSOC is in the public interest, but there will still be no requirement under this legislation for the Garda Síochána Ombudsman Commission to investigate the matter. I know we talk about Garda discretion, an element of which is often required. However, what happens when complaints are made by a worker who is a member of An Garda Síochána within the meaning of this Bill to the Garda Síochána Ombudsman Commission and the commission is satisfied that there is a valid complaint - because if it is not valid it does not come under this - and is satisfied that the complaint requires investigation in the public interest but does not want to do so? We should not giving the public sector so much discretion, because that will damage public confidence. This legislation needed a belt-and-braces approach relating to complaints by members of An Garda Síochána to the Garda Síochána Ombudsman Commission, but it does not use such an approach. The Minister is still leaving wriggle room for the Garda Síochána Ombudsman Commission to decide whether or not it will investigate a matter in the public interest and there is still wriggle room for the Minister as to whether it will ever be the designated body for receiving such complaints.

There is too little certainty. The issue of the Garda whistleblowers went to the Committee of Public Accounts. I will not go through everything that happened. People want to feel that the Oireachtas is responding definitively to this matter - not that the Minister may do it or that Garda Síochána Ombudsman Commission may choose to investigate matters in the public interest. The Minister recognises the point I have made but the draftspersons have got to him to say that we should not tie people's hands, we should not be definite, and we should leave wriggle room, scope and ambiguity.

12 o’clock

The time for ambiguity when it comes to members of the Garda making complaints in the public interest and having them investigated by GSOC has long since passed. We want definitive, prescribed primary legislation and not a statutory instrument.

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