Mick Wallace (Wexford, Independent) | Oireachtas source

The Minister of State cannot ignore the fact that many of the experts are not impressed with what could have been something good. I have gone through a number of the provisions that were in our Bills last year and the year before. These amendments are a serious watering down of those. We did not just invent them. We consulted everyone, anyone and anything involved in policing in Ireland and abroad.

The Minister of State pointed out a number of changes that he viewed as positive. I will mainly discuss section 5 on accountability, which encompasses our amendment and amendment No. 102, but there is no change to section 40:

... which sets out that the Garda Commissioner shall account fully to the Government and Minister through the Secretary General for any aspect of his or her functions, including the duty to provide any document. Clearly, the Commissioner remains accountable to the Minister and Government only. The new Bill just adds a section setting out that the Commissioner shall report to the authority with regard to policing services to facilitate the performance by the authority of its functions under this Act and extends the duty of [the] Commissioner to provide documents to the authority also. The wide breadth of communication between Minister and Commissioner remains under section 41 and a clause is added to set out that if and in so far as a report by the Commissioner to the Minister relates to policing services, the Minister shall inform the authority of those matters. The Minister does not even have to provide the authority with a copy of the report. Furthermore, there is no comparable duty on the Commissioner inserted to keep the authority informed on significant developments relating to policing, for example, peace and public order, but only to keep the authority informed of matters relevant to the authority's functions.

The authority may request a report from the Commissioner on policing and may publish all or part of it.

Section 42 remains the same, in that only the Minister can appoint a person to set up a special inquiry, for example, Ms Emily Logan in the case of the Roma children, but the Minister must consult the authority first. The authority can request that a special inquiry be set up, but the Minister can refuse. Even if she accedes to the authority's request, the report of that inquiry goes to her and not the authority. The Minister sets the inquiry's terms of reference and, if it relates to policing services, has a duty to consult the authority. Furthermore, section 42 has been amended to allow whoever is conducting the inquiry to question members of the authority as well as the Garda during the course of the inquiry.

The new Bill amends section 44 to provide that the audit committee is appointed by the authority and is to provide copies of its report to the Minister and the authority. Section 46 of the original Act is amended so that the annual policing report will be submitted by the Commissioner to the authority, not the Minister, and that the authority shall supply a copy of that report to the Minister. In November, the heads of the Bill proposed that section 40 be amended to make the Garda Commissioner fully accountable to the authority for policing matters and to the Government for security matters, but the legislation as published does not follow through on this. The Commissioner remains accountable to the Government only, just as it was under the 2005 Act, with an added lesser duty on the Commissioner to report to the authority in order for it to fulfil its functions under the Bill. This is a major disappointment. The Minister of State can claim that the Government received legal advice on this, that or the other and that there may be constitutional problems but, as Deputy Clare Daly stated yesterday, if constitutional problems impede us in putting in place an independent policing authority, we should address them instead of deciding that we cannot do something.

If the authority is not being asked to hold the commissioner to account, who remains accountable to the Government and the Minister, what is the point in having an authority at all? The heads proposed that section 41 regarding the Commissioner's duty to keep the Government informed on a wide variety of issues be divided, in that the duty of the Commissioner in policing issues would be owed to the authority while her duty in security of State issues would be owed to the Minister. However, the Government has rowed back on this proposal, as the published legislation does not change the position under the 2005 Act, in that the Commissioner's duty is to keep the Minister informed on both sets of issues. The heads set out that only the authority could request a report from the Commissioner on a specific aspect of policing. This provision has also been rescinded and the Minister still possesses the power to request such a report without even being obliged to share it with the authority.

With regard to the management of the audit committee and the accountable role of the Commissioner, a role in respect of which Professor Dermot Walsh was concerned that the published legislation has gone further than the heads, the Minister appears to divest herself of responsibility.

No change is proposed to section 47 to provide the authority with crime statistics. Surely crime statistics should be reported to the authority and not the Minister, or at least to both. It will be difficult for the authority to deal with police issues if it is not entitled to all the statistical data available.

There is no change to section 40 regarding the direct accountability of the Government, including the Minister, as I mentioned before, nor is there a change to subsection 40(2) and the all-encompassing duty of the Commissioner to provide any document or statement in the possession of a garda that the Minister requests. Professor Walsh has called this an "alarming provision".

The Bill, as published, rows back on a commitment in the heads to make the Garda Commissioner fully accountable to the board alone regarding policing matters. As in the 2005 Act, the Commissioner is to remain solely accountable to the Minister and Government. This is a fundamental change to the proposal in the heads. If the authority is not being asked to hold the Commissioner to account and if the Commissioner remains lawfully accountable to the Government and Minister, we will not have the authority-----

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