Catherine Connolly (Galway West, Independent) | Oireachtas source

I very much welcome this Bill. It is hugely significant legislation and one of the longest Bills that has come before us. Yesterday, we were dealing with one of the shortest Bills to come before us, which was to get rid of charges in hospital. This one has 268 pages, ten Parts, 293 sections and seven Schedules. The explanatory memorandum alone is 58 pages long. I welcome the Bill and acknowledge the huge work that has gone into its preparation.

I acknowledge that there was pre-legislative scrutiny of the Bill as I often condemn when it is not done, so well done on that. As usual, I thank the Library and Research Service for its work. I thank the committee that published a report, on which Deputy Pringle served as the Cathaoirleach Gníomhach.

The Garda Síochána Ombudsman Commission and the Irish Council for Civil Liberties, ICCL, have welcomed the Bill. The Garda Ombudsman described it as a "significant step forward in addressing a clearly-defined, and long-signalled, gap in Ireland's policing accountability infrastructure". That is a delicate way of putting it. In particular, it welcomes provisions in the Bill that strengthen the independence and both expand and clarify the remit of the office of the police ombudsman. All of that is positive. However, GSOC has ongoing serious concerns. The Bill misses the opportunity to embed institutional independence in the new body, as envisaged in the report of the Commission on the Future of Policing in Ireland, which was published in 2018, and as set out in the Council of Europe's Venice principles. Full institutional independence should, in GSOC's view, be the fundamental foundation upon which any proper oversight body is built and its absence is likely to diminish the status of the office. These are concerns that should be taken on board. They have also been expressed by the Irish Council for Civil Liberties.

I welcome that the Bill requires the office of the police ombudsman to perform its functions in a timely and effective manner. It is a good obligation but there is no quid pro quohere. The Bill does not impose a corresponding obligation on other key actors, not least An Garda Síochána in its dealings with the police ombudsman.

If the new police ombudsman is to succeed in fulfilling its expanded remit, it will require a significant amount of resources. That is important because GSOC, in its annual reports, has repeatedly highlighted the lack of resources. As mentioned, this was identified as necessary by the Commission on the Future of Policing in Ireland. The target date for the implementation of the commission's recommendations was last year. We are now behind schedule but they are going through this year.

The Bill will repeal the Garda Síochána Act 2005, which, at the time, was significant reforming legislation. The Act provided for the establishment of GSOC and the Garda Inspectorate. What forced that change? It was made on foot of the Morris tribunal. The last time I looked, the cost of the tribunal was €70 million and rising. That is what it cost for this institution to draw the conclusion that the level of corruption and the significant problems identified were confined to Donegal. We failed to learn from that.

I have said previously that the Garda Síochána Complaints Board was ineffective. That was set up as a result of the Kerry babies tribunal. The Bill comes on foot of almost four decades of serious Garda controversies and reactive efforts at reform in response to different crises. These have always been reactive and never proactive. This is the first time we will pass proactive legislation, albeit with significant problems in terms of accountability.

We had the Kerry babies tribunal 39 years ago. I invite everyone to read A Woman to Blameby Nell McCafferty, which has stood the test of time. A tribunal set up to investigate the police ended up investigating an innocent woman and holding her to account, which was not the purpose at the time. It was a shocking indictment of the system. The tribunal - the judge, solicitors, barristers and Garda inspectors and superintendents - was all male, with not a woman in sight, as it held an innocent woman to account. It led to the establishment of the complaints board, which was subsequently found to be totally inadequate.

The Bill, under three headings, provides for a new governance and oversight framework for policing, the establishment of the office of the police ombudsman to replace GSOC with an expanded remit, the establishment of a new policing and community safety authority, which will merge the existing Garda Inspectorate and the Policing Authority, and a section on security. For the first time, we will have an office of the independent examiner of security legislation to strengthen the national security remit, which I welcome. I am no expert but I take the expertise of the Irish Council for Civil Liberties and GSOC, both of which have highlighted gaps in this area. We are looking at community and a whole-of-government responsibility. I welcome that but I tremble when I see it because when we make something a whole-of-government response, as with housing and climate change, we end up not meeting targets. While a whole-of-government response is welcome, how do we ensure it is operational on the ground?

The Bill also places an obligation on Departments and other public bodies to co-operate and communicate.

I am not sure if I will have enough time to do so but I will briefly look at 39 years of Garda controversies and the reactive efforts that have led us here today. As I mentioned, we had the Kerry babies tribunal, which led to the establishment of the Garda Síochána Complaints Board, which was not effective to put it mildly. In the 1990s and 2000s we had the Morris tribunal. Let me refer to what Justice Charleton has said about the Morris tribunal, and he is still ongoing in his disclosures. I am reading from the third interim report of the tribunal of inquiry into protected disclosures. He says:

This tribunal has been about calling that police force to account. The Morris Tribunal was about the same thing. The commission of investigation conducted by Mr Justice Kevin O’Higgins, [which was my first introduction to the Dáil in 2016]... was about the same thing. Central to these inquiries has been the truth.

He goes on to state: "The gardaí offered no criticism of themselves." I admit that I am picking and choosing comments and I will balance it by saying that Mr. Justice Charleton also acknowledges that: "Our police force is a resource of brilliant men and women." However, he also sets out that management and certain elements of the Garda utterly failed to reflect on themselves or change. He said: "How dispiriting it must be for [these good men and women]... what is detailed in this report... They are crying out for leadership." He goes on to state: "A cultural shift requiring respect for the truth is needed." He continues:

Central to those issues is a mentality problem. Where a problem occurs, strongly self-identifying organisations can have a self-protective tendency. That, regrettably, also describes An Garda Síochána. It is beyond a pity that it took independent inquiries to identify obvious problems with what Maurice McCabe was reporting.

Considering the service Maurice McCabe has done to this country, we cannot mention his name often enough. Mr. Justice Charleton goes on to talk about the difficulty of extracting the truth and it is worth quoting what he says about that. He states: "In relation to the matters at issue in these reports, it has been a dreadful struggle to attempt to uncover what may have gone on behind closed doors." I admit again that I am selectively choosing from this but the report is worth reading. He says:

Public relations speak as a substitute for plain speaking is an affront to the duty of our police force to be accountable. The correct approach for an organisation is to enable those who are expert on a subject to speak on its behalf.

There is a lesson in that for all of us, and certainly for the Government, about public relations. Charleton helpfully goes on to tell us about the obligations on gardaí. He says:

The first obligation of gardaí is to take pride in their work and in their uniform... The second obligation of gardaí [can you imagine] is to always be honest.

He goes on to say that the third, fourth and fifth obligations, respectively are "to be visible", "to be polite" and "to serve the people of Ireland". That applies to all us as public servants. It applies to the local authorities, in particular, and the management of local authorities have forgotten that as they have taken on the corporate mantle that they are there to serve. However, this situation also applies to the Garda. Charleton continues:

The sixth obligation of gardaí is cast on the organisation as a whole. The organisation must treat their obligation to the public as superior to any false sense that individual policemen and policewomen should stick up for each other.

Does the Minister of State remember all of that going on with Sergeant McCabe? Charleton continues: "The seventh obligation of gardaí is self-analysis. It should not be necessary to have a Morris Tribunal... [or] an O’Higgins Commission... [or] a Disclosures Tribunal...to have self-analysis, self-reflection and discovery." He continues: "What has been missing in the past is the command structure of An Garda Síochána calling itself to account." That is from the third interim report of the disclosures tribunal and that is only one of the interim reports from that tribunal.

Does the Minister of State remember former Garda Commissioner Callinan's accounts before the Committee of Public Accounts in that space between the Coffee Dock and going downstairs? I will not repeat the comments he made about an innocent man, which were whispered into the ear of the Comptroller and Auditor General and which subsequently became public at the tribunal when the Comptroller and Auditor General attended. We had the Cooke report about the bugging of the GSOC offices. No evidence of bugging was found but it found that there was a poor working relationship between the Garda and GSOC. We had the Fennelly Commission and so on. Then we had the revelations in 2017 of the falsification by gardaí of breath test figures, which resulted in possibly 2 million bogus breath tests being counted, although the true figure may never be known. In the same year there were 146,000 incidents of people being wrongly summoned to courts to answer fixed charges and so on. Then we had the establishment of the Commission on the Future of Policing in Ireland, led by Kathleen O'Toole, who came up with some good recommendations and analysis, and this Bill, belatedly, is one of those recommendations.

Just in case anyone believes this is historic, in 2022 we had the publication of the independent review, commissioned by the Policing Authority, into the cancellation of over 200,000 emergency calls, 3,000 of which related to domestic violence. That is some of the background that has led us to this mammoth Bill to bring about openness and accountability. I have praised the Government for bringing forward this Bill but the Committee Stage amendments are important if the Government is seriously committed to acting on all of these tribunals and making the police force open and accountable.

GSOC has repeatedly pointed out in its annual report, year after year, including in 2007, 2013, 2014 and 2017, that it does not have enough resources. I have heard various Deputies in here criticise GSOC, wrongly in my opinion, because if they read its annual reports they would see that it has cried out for resources, over and over, and has been utterly ignored to a certain extent. The 2018 annual report of GSOC mentioned that some additional staff were finally sanctioned. What did GSOC identify as a strategic risk? It identified a lack of resourcing and it continued to do that. In case the Minister of State thinks I am going back too far, the 2021 annual report of GSOC is the most recent one available. In it GSOC identifies that resourcing is a perennial factor. I have a whole paragraph on that in front of me but time does not allow me to go into it.

That is where we are so what do we have in this Bill? I mention the concerns about a number of sections, including sections 179, 180 and 181. The office of the Garda Ombudsman said it should lay its strategy and annual report before the Dáil rather than involving a Minister who will then lay it before the Dáil. That is in keeping with good practice and it is in keeping with the practice of other agencies. On making complaints, section 192 inserts a provision for a review by a Minister and that Minister will then decide whether this is necessary at all. No later than three years after the coming into operation of this section, where all complaints made to a member of the Garda go on to the Ombudsman, the Minister will review this and decide if some complaints do not need to go forward. What is pointed out here? It goes against the recommendations of the Commission on the Future of Policing in Ireland. Does the Minister of State remember why that was set up? It recommended that all complaints about the police should be put through the Ombudsman's office to determine what actions need to be taken. If this section is left as is it will interfere with the independence of the Ombudsman, the very thing the Government is supposed to be strengthening.

Section 203 concerns the "Investigation of matters relating to Garda Commissioner by Police Ombudsman", and will require Ministerial approval. Good Lord. This is not in keeping with the recommendation of the Commission on the Future of Policing in Ireland. Section 207 concerns: "Search of Garda Síochána premises". The section states that a warrant must be obtained, which is welcome, but it states that the search must be approved by the Garda Commissioner prior to the application to ensure there are no State security issues. Subsection 14 mentions: "Where the Garda Commissioner objects to a search of a Garda Síochána premises for..." reasons of State security, which is a broad and nebulous concept that can be used as elastically as we want. That is a huge problem for me but more importantly it is a huge problem for GSOC and the Irish Council for Civil Liberties, ICCL. Subsection 15(b) mentions "the death of, or serious harm to a person" and GSOC is concerned that this provision is limited so narrowly to "death...or serious harm" and does not cover criminal activity by the Garda, such as corruption.

Section 221 concerns: "Review by Police Ombudsman" of its decisions and states that this review should be carried out by a person who is independent of the decision.

I have mentioned already that the Bill rightly requires the office of the police ombudsman to conduct investigations in a timely manner, but there is no corresponding obligation on other agencies, especially An Garda Síochána.

I understand the pre-legislative report recommended that the term "incidents of concern" be more clearly defined. Section 189 defines an incident of concern as where a garda:

may have— (I) committed an offence, or

(II) behaved in a manner that constitutes notifiable misconduct;

GSOC and the ICCL have concerns that the remit of the office of the police ombudsman is limited with regard to incidents of concern. According to GSOC - and I fully agree - some incidents may be of relevance to public confidence. That is absolutely the case. Confidence and public perception are hugely important in policing but would not be notifiable or constitute misconduct. They say that all incidents of concern should be notifiable. The Garda Commissioner is not required to notify the police ombudsman under section 200(6) if it would be "prejudicial to the security of the State" to do so. That is far too broad.

In my opening remarks I forgot to pay tribute to Vicky Conway. I note that Vicky Conway and Eddie Molloy opposed the creation of the board that is being set up. I mention her in particular for all her work, including her work on the Policing Authority. She was a breath of fresh air and a voice for human rights, for proportionality and for equality. She absolutely deserves our praise.

The first board will be entirely made up of ministerial appointees. Many question marks come with that. The new Bill reduces the role of oversight bodies in the appointment of the Commissioner.

I have a lot of concern about the proficiency or lack of it in the Irish language of the gardaí atá ag obair nó a bheidh ag obair sna ceantair Gaeltachta. Under section 33(3), "The Garda Commissioner shall, to the extent practicable, ensure that members of garda personnel" are "sufficiently competent in the Irish language". We know from the Coimisinéir Teanga's indictment of the failure to deal with Irish speakers in Donegal that the phrase "to the extent practicable" has not helped to date. It took him ten years and in desperation and frustration that coimisinéir, who is now gone or is about to go, had to lay the report before the Dáil to bring it to our attention. We are now enshrining something that has utterly failed in the past.

There is a change in the status of civilian staff. I am not sufficiently knowledgeable about this, but I note the serious concerns of the union and staff - and especially of Fórsa - about this aspect of the Bill, which I ask the Minister of State to consider. There are some concerns about the independent examiner of security legislation. The powers of prosecution were to go from An Garda Síochána but that has not happened in this Bill. It is a missed opportunity. Perhaps the legislation is too big and it could not be included but certainly I would like a deadline to be set for when that necessary legislation will come before us.

I will finish with human rights. The ICCL recommends that the Garda code of ethics should include a reference to the human rights standards that are expected of Garda members and staff. It also recommends that it be made into a disciplinary code. Again, that is not included in the Bill.

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