Frances Fitzgerald (Dublin Mid West, Fine Gael) | Oireachtas source

Section 7 of the Bill inserts a new section 102B into the 2005 Act which, for the first time, brings the Garda Commissioner within the scope of GSOC investigations. This is a significant and important development to which the Government attaches a great deal of importance. Far from the interpretation being given here, it is a significant provision which strengthens the powers of GSOC in regard to the Garda Commissioner. I will outline how we are providing for this and why the way we are doing it is appropriate and encompasses the proper protections. I reject absolutely some of the interpretation that has been given that this is about the ongoing politicisation of An Garda Síochána. It certainly is not.

It is far from that. It is about the duties and responsibilities of the Government and the Garda Commissioner. That is why it has been drafted as it has been.

In carrying out her general policing functions, the Garda Commissioner is the head of the national security service. In this the Commissioner fulfils a vital role which is very closely linked to the obligations of the Government within the framework of the Constitution to protect the security of the State. There are constitutional issues in regard to the obligations and responsibilities that a Government and the Minister for Justice and Equality have, and I refer the Deputy to them. After careful consideration and listening to what people had to say on Committee Stage, I said I would take account of the discussions that took place with many of the Deputies present here. Having reflected on the discussion and examined the provision, and given the importance of the decisions to be taken under the section and the key position of the Commissioner in security matters, I decided that the provisions of section 102B should be strengthened to provide a specific role for the Government rather than just for the Minister. While I note what Deputy Wallace said about this, he would expect it to be a rare occasion, as would I.

GSOC is an independent body and will have the authority, under this legislation, to investigate the Garda Commissioner. This is a very important power and did not exist previously. Rather than the decision remaining with one Minister, I deem the issue so serious that it would require a decision by the entire Government. This is why I have tabled amendments Nos. 14, 16 and 17, under which Government approval would be required before the Minister could consent to the investigation, request that GSOC commence such an investigation or refuse to consent to a proposed investigation by GSOC. It has been strengthened. Under amendment No. 17, the original proposal has been further strengthened to ensure that when the Government refuses a request by GSOC to undertake an investigation into the conduct of the Garda Commissioner, it must state reasons. The decision is not just for the Minister, who might have a relationship with the Garda Commissioner, but the Government, and it would have to be for stated reasons, which is important. The practical reality is that consent to a proposed investigation would be refused only in exceptional circumstances. In these circumstances, the Government would have to provide specific reasons. It is impossible to envisage any circumstances under which, on foot of a demonstrable concern that the Garda Commissioner may have committed an offence or behaved in a manner that would constitute serious misconduct, consent would be withheld.

The introduction of the requirement for Government approval of a ministerial decision under section 102B is intended to meet some concerns expressed on Committee Stage that there would be a ministerial veto on a GSOC investigation into the Garda Commissioner. I hope the Deputies will accept the Government amendments in this spirit and also because of the pivotal national security functions undertaken by the Commissioner. It would not be appropriate to accept the amendments, which would remove the requirements for ministerial consent.

Amendment No. 15, tabled by Deputies Wallace and Clare Daly, seeks to add an additional criterion for which GSOC could initiate an investigation into the Garda Commissioner. The proposal is that GSOC could investigate the Garda Commissioner if it considers the Commissioner had repeatedly breached his or her duties. Having examined the amendment, I am satisfied that, were the Commissioner found to have officially breached her duties, the case would be comprehended by proposed section 102B(1)(b), which allows for investigation in cases in which the Commissioner behaves in a manner that would "constitute serious misconduct". This is a broad concept which extends not just to a specific set of actions but to a course of contact. The proposed amendment is not necessary. In addition, I am concerned that the Deputies are focusing on a very particular set of circumstances and given the varied circumstances that could arise, it is not the approach that should be adopted. I regret that I cannot accept the amendment and I asked the Deputies not to press it. I have listened to the debate and discussion on Committee Stage and have brought in three amendments which give further protection regarding the points discussed on Committee Stage and which acknowledge the very serious situation outlined. If GSOC said there had to be an investigation into the Garda Commissioner, the Minister's decision would have to be supported by a Government decision and if the Government refused, there would have to be stated reasons. This would involve the Cabinet taking its obligations and responsibilities under the Constitution as it should.

I do not accept some of the language that has been used, that we are tinkering around the edges of Garda reform. Very real reform is taking place. There will be further amendments relating to GSOC under the Garda Síochána (policing authority and miscellaneous provisions) Bill, which was intended to deal with a number of issues originally. The establishment of the Garda authority was one of the main points Deputy Wallace had in his original Bill. It is moving forward and will be done. No doubt we will have debates on a number of issues related to it.

Some of the points that are being made here on whistleblowing and the cases that have emerged in recent times are about a culture which is and has been changing over time. While legislation, clearly, has a role to play, so does good management and acceptance of the need for reform. Far from the way Deputy Coppinger has described it, gardaí, in their provision of a public service and what it has been necessary for them to do regarding protests, have been keeping the peace. Considerable resources have been involved. I ask Deputies to reflect on the amendments I have introduced in response to the Committee Stage debate and I hope they can accept them.

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