Mick Wallace (Wexford, Independent) | Oireachtas source

I move amendment No. 22:

In page 5, lines 34 and 35, to delete all words from and including “section” in line 34 down to and including line 35 and substitute the following:

“sections 95, 98, 102 or 106, is so provided within four weeks of the date of receipt of a formal request.

103B. An Assistant Garda Commissioner shall ensure that information is to be provided by the Garda Síochána to the Ombudsman Commission for the purposes of an investigation by the Commission of a complaint, or an investigation by the Commission of any matter under section 102B is so provided within four weeks of the date of receipt of a formal request.”.”.

The insertion of section 103A, as drafted, by the Government is encouraging. For the first time it establishes a statutory and legal obligation on the Garda Commissioner to provide information to GSOC. However, this only applies to section 102 investigations. This amendment broadens the scope to include the standard section 95 and section 98 investigations, which comprise the vast majority of GSOC investigations. Neither does this obligation apply to section 106 investigations into practice, policy and procedure. Given that the Commissioner may now be the subject of an investigation, the addition of the proposed section 103B requires that an assistant commissioner be responsible for the provision of information which might incriminate the Commissioner.

A more definite timetable than "as soon as practicable" is also necessary to provide clarity and strength, and the above amendment sets a timeframe of four weeks. The UN Human Rights Committee expressed concern in July 2014 at Ireland's compliance with articles 7 and 10 of the ICCPR, stating that it was concerned about "the ability of [GSOC] to function independently and effectively", referencing the time taken to complete investigations due to lack of co-operation by the police.

Until now, provision of information was done by way of mutual co-operation or, more recently, by protocol or soft law, which is unenforceable. As repeatedly recommended by the UN, most recently in the concluding comments by the Human Rights Committee in July 2014, section 106 has been amended in the Government draft to allow GSOC the independence to initiate investigations into the practice, policies and procedures of the Garda. Prior to this, the Minister's consent was required before GSOC could initiate any such investigation. Indeed, the last three Ministers have refused permission to investigate the Corrib policing controversies for overtly political reasons. However, section 106 reports will be made to the Minister, who may or may not redact parts before laying them before the House. Once the policing authority is established, it would seem more appropriate that GSOC would present these reports to the authority. This amendment makes that change while allowing the Minister to retain the duty of laying those reports to the House, subject to national security. However, where there is a dispute between the Minister and the Garda authority over any exclusions from those reports on national security grounds, a right of appeal to the designated judge under section 100 of the 2005 Act is provided for.

Allowing GSOC to look at the practices, policies and procedures of the Garda is a move in the right direction, but it would be better if it was not in the hands of the Minister to redact as he or she sees fit. One can imagine if, by chance, in the case of this becoming law, GSOC decided to investigate Corrib. We have been down to Corrib and I do not understand why several governments have refused to investigate what went on there because it was a national disgrace. If GSOC should decide to investigate it, and if it is not allowed to publish its investigation results, but must go back to the Government of the day, I would not be very optimistic about the prospect of the Government revealing all that the GSOC investigation threw up. On that ground alone, the Government veto, for want of a better word, over the GSOC investigation through section 106 should be removed and any investigations that GSOC carries out into the practices, policies and procedures of An Garda Síochána should be published by GSOC.

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