Mick Wallace (Wexford, Independent) | Oireachtas source

I move amendment No. 1:

In page 6, line 24, after “preventing” to insert “where there is reasonable suspicion”.

We like meeting the Minister of State and we get on fine with him, but he must forgive us for feeling a bit aggrieved that we see very little of the Minister for Justice and Equality on these occasions. I would hazard a guess that if it were the former Minister, Deputy Shatter, he would get out of his sickbed to be here. It is not that he would not trust anyone else to do it but that he was so much on top of his game. I did not agree with everything he did and he was not on top of his game in certain areas, but he had a very different approach. Given that the Government has advertised this almost as a flagship Bill in the area of policing, although we do not agree with that, it is surprising the Minister is not here herself.

We submitted many amendments but we were pretty shocked at about 12 p.m. today to see that 37 of our amendments were ruled out of order on the basis that they were not discussed on Committee Stage. We went to the committee initially but the proceedings were not completed on the first day. They were postponed to another time, which was fixed for 12.30 p.m. on a Tuesday. Neither I, Deputy Clare Daly, Deputy Mac Lochlainn, Sinn Féin's justice spokesperson nor the Fianna Fáil justice spokesperson were available to attend, but they insisted on the meeting going ahead anyway. We had a Technical Group meeting which we had to attend to get speaking time for the week. On that basis, our 37 amendments have been ruled out of order. I find this very undemocratic. If we are to be treated in this way, we will avail of any rules and regulations we can use to enhance our democratic rights on this end.

The amendment in question relates to section 4 on the security services. In section 3A(1)(a)(i), as inserted by section 4 of the Bill, regarding "preventing, detecting and investigating offences under the Offences against the State Acts 1939 to 1998", we are looking to insert "where there is reasonable suspicion" after "preventing". There are huge issues around State security. To look at where we are even before this Bill is enacted, in the current law there is no definition of "State security" in the Garda Síochána Act 2005 because there was not the same need for the distinction since the Garda and the Minister were responsible for both policing and State security. There is a reference to State security in section 99 of the 2005 Act which restricts GSOC, when investigating a possible offence, from searching any Garda station designated under section 126 and allows the Garda Commissioner to object to any investigation of Garda stations on State security grounds. The Minister is the final arbiter if there is disagreement between GSOC and the Commissioner in this regard. There is also a procedure set out in section 100 where a designated High Court judge may refuse the operation of section 99 and any regulations issued under sections 96 and 126, which allow a Garda requested by GSOC to provide a document in connection with a GSOC investigation to refuse to do so on grounds of State security. The matter is then referred to the Minister for her direction.

In the new Bill there is a very broad and vague definition of State security, with the Minister self-appointed as the final arbiter. The new Bill also permits the Minister, arguably unconstitutionally, to decide what is or is not lawful. It states:

3A.(1) In this Act ‘security services’, subject to subsection (2), means the functions of the Garda Síochána referred to in section 7 that are concerned with—

(a) protecting the security of the State including, but not limited to, the following:

(i) preventing, detecting and investigating offences under the Offences against the State Acts 1939 to 1998, the Criminal Law Act 1976, the Criminal Justice (Terrorist Offences) Act 2005 and the Criminal Justice (Money Laundering and Terrorist Financing) Act 2010;

(ii) protecting the State from—

(I) espionage,

(II) sabotage,

(III) unlawful acts that subvert or undermine, or are intended to subvert or undermine, parliamentary democracy or the institutions of the State.

I point out that "intend" is a very broad term. These provisions, it is stated, do "not include lawful advocacy, protest or dissent". Who decides if it is lawful? It appears that either the Garda or the Minister in this instance are setting themselves up as judge and jury as to whether something is lawful. Who decides if something is intended to subvert parliamentary democracy? The goings on at Shell to Sea, where the local community strongly protested against the actions of Shell and what it was doing to the local environment and the manner in which it went about it, were handled very roughly by the Garda Síochána. Much has been said about this over the years. It beggars belief that, despite a great deal of international condemnation, we have never seen a proper independent State investigation into what went on there. The State could easily argue that it was in the interest of State security that they handled it as they did. That is very worrying from my perspective.

It is not an ideal position for State security and policing to be under the control of one body. I realise that changing it is a significant challenge, but if one looks around the world, it is a rare position. Some Government - obviously, it will not happen with this Government - will eventually take on the challenge of dividing up State security and policing. I would be convinced that we will get a more accountable policy operation when we separate them. Sadly, too often gardaí have hidden behind the notion of State security. They state they cannot give one something and when asked why, their response is that it is in the interest of State security. It is interesting that Mr. Conor Brady, a former GSOC commissioner, has highlighted that GSOC has struggled alarmingly to deal with many complaints about An Garda Síochána because of its use of State security. I realise we will not get that now but we should, at least when we are discussing this Bill, provide for a little more transparency in how things are done.

When there is an argument about whether something should be deemed part of State security, the Minister should not be setting herself up as judge and jury over the matter. There should be an independent arbiter of some sort, preferably a High Court judge. In parts of this Bill, Deputy Clare Daly and I have introduced the idea of an ombudsman commission. We have introduced the idea of GSOC playing a role, in line with a High Court judge, to decide where there is a dispute as to whether a matter is rightfully being considered one of State security. The idea of leaving it in the hands of the Minister of the day is not the way to handle it.

As the Minister of State, Deputy Dara Murphy, will probably be aware, many of our complaints about how policing is conducted are strongly linked to the fact that policing is excessively politicised in Ireland. The Government has too much control over the running of the police service and it has led to many problems.

When we introduced our policing Bill, both two years ago and a year and a half ago, we were strongly in favour of the idea of a police authority but we had a very different idea of a police authority than what we are getting now. One of the strong elements running right through our police authority was taking the hands of the Government of the day off policing. It was also designed to be much more accountable to the people. It was designed to lead to much greater policing by consent rather than from on high.

It is a long Bill, there is a lot to talk about and I will not go on too long on amendment No. 1. Likewise, on the second amendment, as we are discussing both of them together, in section 3A(1)(a)(ii)(III), under security services, we seek to delete "unlawful acts" and substitute "acts which have been found by a Court to be unlawful, and which". I have dealt with this issue. There should be court involvement in deciding what is unlawful and what is not. When is a protest lawful and when is it not is a decision for the courts? It is not a decision for a politician. That is why we would be adamant that both of these amendments are taken seriously and carried.

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