Michael McNamara (Clare, Independent) | Oireachtas source

I welcome the Bill. It is maybe not quite as revolutionary as it is being portrayed but it does nevertheless mark advances. One issue in particular that was discussed at pre-legislative scrutiny, which I am glad to see addressed, is the current statutory provision whereby the Commissioner is required to bring certain matters to the attention of the Minister. However, there is also a vague reference to "any other matters that, in the opinion of the Commissioner, should be brought to the attention of the ... [Minister]".

I would have thought that was inherently open to abuse. It would seem to me that it has been abused. I was very surprised by the manner in which a relatively minor road traffic offence, which is not to say that road traffic offences are minor but this was a minor one on the scale of road traffic offences, that was alleged in respect of a former European Commissioner ended up being brought to Cabinet and from there into the media. That does seem extraordinary by any stretch. I am glad to see that clarification was provided as to how it made its way to the Minister and, of course, from there to Cabinet. However, it does certainly suggest that political policing would be possible under the old statutory regime. I am glad to see that has changed to the extent that section 133 of the Bill now states:

the Garda Commissioner shall keep the Authority fully informed of the following: (a) matters relevant to the functions of the Authority;

(b) any other matters that, in the opinion of the Commissioner, should be brought to the attention of the Authority having regard to its functions.

The Commissioner shall report such matters to the authority, which one would hope will depoliticise it to some extent, or at least remove the possibility for politicisation of An Garda Síochána.

I also have reservations about another section, which previous speakers have recited. I appreciate I am not the last speaker and that there are others to follow, but other Members have raised the appointment of members of Garda staff. In particular, section 54 states that:

Every member of the civilian staff of An Garda Síochána who is a civil servant of the Government immediately before the coming into operation of this section and who is designated by order of the Minister for the purposes of this section shall, on being so designated, become a member of garda staff.

I would have thought that is very problematic from the perspective of those who are affected by it. I have spoken to constituents who told me they did not join An Garda Síochána; they joined the Civil Service with normal mobility. I appreciate that we are accompanied in the House today by civil servants. Like all civil servants, they are open to mobility; it is a feature of the Civil Service. It is open to them to apply to move to other Departments and positions within the Civil Service. There are many disadvantages, of course, to being in the Civil Service but one of the advantages is that there is mobility across the Civil Service. That will effectively be removed from the current civil servants who are working in An Garda Síochána. Its personnel will be affected by this. That will have a very serious impact, and one that is extremely unfair. As I said, those people joined the Civil Service.

The other issue of concern is section 55, which discusses superannuation and provides that:

The Minister [which is the Minister for Justice] and the Minister for Public Expenditure and Reform, [may] make a scheme or schemes for the granting of superannuation benefits to or in respect of any person appointed as a member of garda staff or any person who, on becoming a member of garda staff, does not become a member of the Single Public Service Pension Scheme.

That is only an enabling provision. It does not mean it will happen but, of course, based on past experience, such provisions are there for a reason. I would be shocked if it is not availed of so that members of the current civilian staff of An Garda Síochána who are civil servants do not end up with a different superannuation scheme to persons who are now their colleagues in the Civil Service.

That would be unfair. Of course, promises will be made and unions will be consulted, but it is noteworthy that Fórsa, the union that represents the majority of these staff, has not been consulted so far. It is a mistake that the Bill has reached this stage without a far greater degree of consultation. In any event, consultation will take place, staff will be assured that they will not be treated any less favourably in future, guarantees will be given and so on, but we should recall that similar guarantees were given to civil servants in the Department of Posts and Telegraphs who became employees of An Post and Telecom Éireann, respectively. Their experience would suggest that guarantees are worth little. Over time, they have been treated entirely differently from civil servants, particularly in terms of pension benefits. A different PRSI rate is also applied to them. One assumes the rationale for the latter is that it compensates those companies for the greater pension burdens they took on. The staff are not getting greater pensions, though, which begs the question as to whether the different PRSI rate amounts to state aid, which would be contrary to EU law and is an issue that may or may not arise in future. The benefit that the Government has in this regard - by "Government", I do not mean the Government of today, but successive Governments, which have adopted similar policies - is that there is an ageing staff and people are no longer in receipt of pensions because they are dead or are at an age where they are not able to conduct what I am sure would be heavily resisted litigation that would take a long time and could have to make its way through adjudication beyond these shores. These are significant concerns.

The Bill essentially creates Garda personnel comprising two different categories – civilian staff members of the Garda and gardaí. There will be a certain claim about levelling the playing field and everyone being treated equally, but that will arguably not be the case. Indeed, I hope it will not be the case when it comes to the right to strike. One of the Bill's more troubling aspects is that section 59 of the Garda Síochána Act is replicated in full in section 98 of the Bill, whereby a person "is guilty of an offence if he or she induces, or does any act calculated to induce, any member of An Garda Síochána to withhold his or her services". This essentially amounts to a ban on the right to strike for members of An Garda Síochána. As the Minister of State will be aware, the Association of Garda Sergeants and Inspectors, AGSI, through the European Confederation of Police, EuroCOP, to which it is affiliated, was successful in taking a complaint to the European Committee of Social Rights. It was found that there was a right to join a trade union, to engage in the normal industrial relations machinery of the State and, fundamentally, to strike. A similar complaint was made in respect of members of the Defence Forces through its European affiliate. That complaint was also successful, with the exception that it was found that members of the Defence Forces did not have a right to strike. Both of these findings have been studiously ignored by successive Governments. Before the Minister of State was a Deputy, I tabled a Private Members' Bill and was slightly disappointed that my colleagues in the Labour Party were not in a position to support it at the time, but they were in government with the Minister of State's own party.

In any event, it has been portrayed that decisions of the European Committee of Social Rights are not binding on Ireland and, therefore, do not have to be applied. That is a fundamental misconception of the rule of law and how it operates. If Ireland signs up to international legal norms, then it accepts that it will be bound by them. In debating legislation that is about policing, the rule of law and so on, to disregard blatantly a finding that Ireland was in breach of international law and its international legal commitments is problematic from a rule of law perspective.

From the perspective of industrial relations and ensuring morale in the Garda, it is even more problematic. While the ban on the right to strike in the Garda, insofar as it exists, is replicated from the 2005 Act into the Bill, there are also provisions in the Offences against the State Act that would make it difficult for gardaí to go on strike. They are also removed from the Industrial Relations Act. It appears that this provision will not apply to Garda staff in future, but it will remove them from the protection against civil liability in the event of withdrawing their labour.

No one, and least of all Garda representative bodies, is suggesting that gardaí should be able to stop working en masseand create a situation where there is no policing in the State. What I am suggesting is what is required by Ireland's international legal commitments, subject to adequate measures being put in place. I believe the Garda is a highly motivated group of men and women across the State and none of them would want to abandon their roles and leave Ireland without policing, but that does not mean that they should not be able to withdraw their labour in an organised manner that ensures that the policing function in the State continues to some extent. There is a constitutional right to withdraw your labour. What else do you have to bargain with if the Government will not listen? There is a perception within An Garda Síochána that successive Governments and Garda managements have not listened. There is also a morale issue in that regard, and one that the Government needs to address. One way to do so would be to bring Ireland into compliance with its international obligations. This is not a significant request and I will table amendments to that effect on Committee Stage.

I will turn to one or two other matters. Actually, that is the main thrust of what I had hoped to say. I ask that the Minister of State consider the industrial relations aspects of this Bill, both in terms of members of the Civil Service who are currently civilian staff in the Garda Síochána and the impact that the Bill will have if foisted on them without consultation, and in terms of the impact of continuing what has been found to be an unlawful restriction on the social rights of gardaí. For the latter to be enshrined in legislation in 2023 would be regressive, damaging to Ireland's international reputation and, most of all, damaging to the morale of the Garda. I ask that the Minister of State consider this matter ahead of Committee Stage.

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