Clare Daly (Dublin North, United Left) | Oireachtas source

I echo Deputy Wallace's points. It is almost exactly a year since the Government published the first heads of a Bill on a policing authority, and while this version is radically different and inferior, the one we got in November of last year was not any great shakes either. That said, I find it quite shocking that the Government has on more than one occasion lauded this as one of its great achievements in Government. I also find it quite shocking that the Minister for Justice and Equality, Deputy Fitzgerald, could not deign to be here when she made what must be her 79th public appearance in welcoming the same-sex referendum result, which obviously everybody is happy about. We all voted for it so of course we are. That was a judgment of the people so it is shocking to milk it for the length of time it has been and not have the time to come to the House.

However, that is less shocking than what happened with the amendments. To register the point, we all like to work in a spirit of co-operation and even though members of the Committee on Justice, Defence and Equality stated that they could not attend a meeting to discuss the amendments, that committee went on regardless. Let us remember that we got a note this morning with the grouping of the amendments tabled on this Bill. There was no mention of anything being out of order on the first grouping we received but two hours later, after 12 o'clock, another grouping was issued to tell us that a chunk of amendments had been ruled out of order because they were not discussed on Committee Stage, which all the Opposition members made abundantly clear they were not in a position to attend. When the Government, in putting forward a Bill that is supposed to be delivering transparency and accountability in policing, does it in such an underhand manner, it undermines the Government's argument. Unfortunately, the Government will pay a heavy price for that because we will insist on our democratic rights on every amendment now being adhered to. Whereas we might have been more amenable to speed up the passage or whatever, why would any sense of co-operation be given by the Opposition when the Government is so shameful in treating the Opposition in this regard on Committee Stage?

We are talking about a Bill that is a much more diluted version of what the Government put forward in November of last year. Deputy Wallace and I were looking at some of the information we put out at the time when we made the point that the legislation then was substantially weaker than Deputy Wallace's Bill which was passed on Second Stage in the House and which the Government allowed to lie derelict. Deputy Wallace's Bill delivers real Garda accountability and a proper independent Garda authority. It was put together with major stakeholders such as the Irish Council for Civil Liberties, ICCL, the then Irish Human Rights Commission, the Combat Poverty Agency, Social Justice Ireland and all the other organisations, not least of which were the countless people we met throughout the country who have been crying out for and demanding justice in this area because of the difficulties they experienced at the hands of An Garda Síochána. Critically, it also included members of An Garda Síochána who found the structure incredibly inadequate in taking forward grievances they had.

The excuse put forward by the Minister on the previous occasion - I have asked her about this and she has failed to answer it - as the reason she has a watered-down version of what the Government was talking about previously is legal constraints, constitutional issues and the so-called advice of the Attorney General. When the history books are written about the record of the Government, the role of the Attorney General, Ms Máire Whelan, will feature. She will have at least a chapter or two devoted to her in terms of some of the decisions she has stood over. With regard to this one, however, we do not know. We have asked for the publication of that opinion and we have not got it. The advice on that rings hollow because it does not seem to stack up with the views being put forward by others. The Government states it had to row back because of the Attorney General's advice, that it would have liked something stronger and more robust but the Constitution does not allow that. That is not the case. In fact, most academics believe the Garda Commissioner might be allied to the Executive under Bunreacht na hÉireann. If the Government is relying on the advice of the Attorney General regarding constitutionality, then it should publish it.

Let us see it. It is only advice and her advice has been wrong before. If the Government thought it was wrong and there was a constitutional restriction on making the Bill better, why did it not call a referendum on it? The Government held a referendum on the age of the President, which nobody cared about. Why did it not hold a referendum on this at the same time as the marriage equality referendum? If the Government was worried about the Constitution, it could have put this to the people, who would not have disappointed.

The sections relate to State security. As Deputy Wallace said, Ireland's policing service is unique because of the way security comes under these issues. As he said, the Act contains no definition of State security. Our problem with the amendments is that the Bill is too broad. It is setting up the Minister as judge and jury on whether an issue is a matter of national security. The Garda Síochána is not democratically accountable if, as the Bill proposes, the Minister can say a certain issue is a matter of national security and therefore the authority cannot investigate it.

Deputy Wallace has highlighted the protest actions that could be included. We saw what happened with the water charges protests this year and the number of citizens who have been arrested for exercising their democratic right to protest. People have been charged with kidnapping. It has been ridiculous. Anybody would see it as lunacy. It is not acceptable. The excuse of national security can be used almost without limit based on the way the Government has drafted the Bill. It is very important to define who decides what is unlawful and to specify that there be reasonable suspicion, not just carte blanchefor people to decide.

I would like the Minister of State to comment on the provision proposed in section 3A(1)(a)(ii)(III) that the Garda and the Minister decide whether something is unlawful. This is almost certainly unconstitutional. Under the Constitution, only a court can decide whether something is unlawful. The Bill is subverting parliamentary democracy and seems lunacy. Under this definition it could include issues such as water charges protests and protests against the installation of water meters. The Bill provides that the Minister retains full and direct control and the authority has no role in policing issues that arise given that the Minister can turn around and forbid the authority to investigate a matter on the grounds that it is a matter of national security. It is a major flaw in the legislation. As Deputy Wallace said, it was highlighted by many people who gave their opinion when the Bill was moved. It is a major flaw. We are proposing in amendment No. 3 the establishment of an independent arbiter with recourse to a High Court Judge, for example.

National security is one of the overriding issues in the proposed legislation and we need to consider it. Some of the organisations that contributed to the discussion proposed other options and the Government could have given them proper consideration. For example, the Irish Human Rights and Equality Commission, IHREC, had no difficulty with issues of, say, national security policing being examined by GSOC or overseen by the proposed authority, which we would like, where national security policing impacts on the fundamental rights of individuals. The authority should also have a liaison role with any Oireachtas committee which has competence for national security policing review, as per the IHREC recommendation. The IHREC pointed out that it is a requirement of the European Court of Human Rights that we have an independent body to provide oversight on national security policing. We are discussing a so-called independent Garda authority that does not have independent oversight of national security policing. Instead, the Government is using this as a fig leaf - a big wall, rather - to hide behind and avoid public scrutiny.

The Government had other options. Some of the academics who gave up their time and contributed to the process suggested other options. For example, Dr. Vicky Conway, in her presentation in Farmleigh, proposed two different approaches on security issues. The Government could have transferred security matters to an alternative agency, as suggested by the Committee on Justice, Defence and Equality. An alternative was the Probation Board for Northern Ireland, PBNI, approach of removing these matters from the purview of the authority with some exceptional opportunities of review by way of some sort of special-purpose committee. The protection of judicial oversight in differentiating between policing and security matters, which we are setting out, is the absolute minimum. Without it, one has nothing. One is just saying the Minister can decide and that is it. If this is the case, we might as well wrap up and not have the authority. As an absolute minimum a High Court Judge is necessary. This is why we propose the amendments.

That the two are so intertwined in the police service is a key part of the Bill. If the Government is not prepared to disentangle them, there is nothing unconstitutional that could not provide the Government with giving more accountability in this regard. It is regrettable. I have no doubt it will be used. Deputy Wallace is correct to point to the opinions of people such as Conor Brady, a highly respected former head of GSOC, who identified that the excuse of State security is a major obstacle to GSOC investigations into the Garda Síochána. We have no reason to believe that the situation has improved in the years since he left GSOC. All evidence would suggest it has deteriorated. Some of the adjudications GSOC has made of late have further diminished the public’s confidence in the organisation’s ability to deal with Garda complaints and hold gardaí to account. If we have a problem with national security being used in one Garda accountability body, to establish a policing authority and allow final decisions on what it can and cannot investigate at the door of the Minister is political policing and political interference. It is not delivering genuine Garda accountability and is not the way forward. The Government would be better off doing nothing than going down that road.

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