Mick Wallace (Wexford, Independent) | Oireachtas source

I move amendment No. 3:

In page 7, line 15, to delete “Minister” and substitute “the Ombudsman Commission, which will consult a designated Judge of the High Court who will act as an independent arbiter”.

We had agreed a different grouping. In any event, amendment No. 3 seeks to substitute in section 3A "the Ombudsman Commission" for "Minister" and to provide that the Ombudsman Commission will consult a designated judge of the High Court who will act as an independent arbiter. We have partially touched on this principle already. The amendment is intended to prevent the excuse of national security being invoked by the Minister to prevent a full investigation by GSOC. The legislation as drafted proposes to set the Minister as the final arbiter where there is a disagreement over whether an issue is considered a policing or a security issue. The Minister could be self-interested in such a categorisation and it is illogical to consider that a safeguard of any sort.

Despite the statement by Josephine Feehily, who is to be chair of the policing authority, that the demarcation between policing and security was something to be tested, no appeal to the courts is provided for. There is no way to test it and the Minister has the final say. Decisions on national security and policing should be dealt with by an alternative body such as GSOC and overseen by an independent arbiter such as a High Court judge. We suggested GSOC as the relevant body so that the amendment would not be disallowed. If we had suggested some other new body, our amendment would have been thrown out on the basis that it was going to cost the Exchequer money, God forbid. We would not like to do that. Although it is GSOC that is referred to, it is our belief that some independent body should be involved in the process.

Our policing Bill would have allowed the Minister a say in the decision on whether something should be deemed a matter of national security. It would also have given the policing authority a say. If they could not agree, a judge would have become involved. That is not the case with this Bill, under which the Garda Síochána and the Minister are the final arbiters and there is no independent decision maker.

The Irish Human Rights and Equality Commission, IHREC, stated that it had no problem with issues of national security policing being examined by the Garda Síochána Ombudsman Commission, GSOC, or overseen by the proposed authority. The protection of judicial oversight in differentiating between policing and security matters is the absolute minimum that is acceptable. All such matters should be decided by a High Court judge, as simply providing for judicial oversight can mean rubber-stamping and a one-day annual review of sample categorisations, which we have encountered a number of times in terms of surveillance, for example, gardaí giving themselves permits to bug vehicles, etc. Instead of going to court to get an order to initiate surveillance, a garda can get a senior officer's permission. Such transactions are supposed to be examined at the end of the year by a judge but he or she only rubber-stamps them after examining all of them in one day, having travelled to a number of places in the city to do so. It is not a serious exercise. We recommend more oversight and independent decision making.

See this speech in context