Dáil debates

Thursday, 23 June 2005

Garda Síochána Bill 2004 [Seanad]: Report Stage (Resumed) and Final Stage.

 

Debate resumed on amendment No. 19:

In page 11, between lines 20 and 21, to insert the following:

"(b) protecting and promoting human rights,".

—(Deputy Ó Snodaigh).

3:00 pm

Photo of Aengus Ó SnodaighAengus Ó Snodaigh (Dublin South Central, Sinn Fein)
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Táimid ag déileáil fós le leasuithe Uimh. 19 go 22, 89 agus 96. Bhí mé beagnach críochnaithe ag labhairt ar an leasú seo, Uimh. 19, le chéile le hUimh. 20 agus an dá cheann eile ag an deireadh, Uimh. 89 agus 96. Bhí méá rá go raibh cearta daonna i gceist anseo, agus gur cheart go mbeadh an pháirtnéireacht chuí ann idir na gardaí agus na pobail chun tosaíocht a thabhairt dó sin.

Is é tosaíocht an príomhrud atá i gceist anseo. Tá an Bille leagtha amach in ord éigin seachas in ord a thosaíochtaí, an gnáthbhealach. Bíonn tosaíocht 1, 2, 3 agus mar sin de ann. Tá mé ag iarraidh dhá cheann eile a chur isteach. Is iad sin an ceann ó thaobh cearta daonna de, ach go háirithe, agus an ceann ó thaobh ról na ngardaí de agus iad ag tabhairt ceannaireachta don phobal áitiúil.

When I spoke earlier about the human rights audit, I referred to a document which I said was short enough at 23 pages. I now see that it is just the executive summary which is 23 pages long, so clearly the document itself is a lot longer. I scanned through the document again and perhaps we might return to it later to ensure that An Garda Síochána is implementing much of its findings. The audit sought to find out if there was a human rights ethos within the Garda and it raised a number of detailed questions. It first asked how human rights were made relevant to police work. The answers given were grouped and analysed. The commission then came to its conclusions and presented them. The report makes scary reading, despite the human rights initiative having operated within An Garda Síochána for five years. My amendment proposes that an objective of An Garda Síochána should be to promote and protect human rights. In doing so, gardaí would have to comply with the majority if not all the recommendations of the human rights audit carried out by Ionann management consultants and it is only right to expect that.

My other amendment relates to Garda protection of the security of our communities and the provision of positive leadership. Despite the Joycean trip around my constituency suggested by the Minister, the experience in my constituency highlights a model which I hope is reflected elsewhere. I mentioned a number of policing fora in my constituency yesterday through which the Garda worked well with the community. I have been trying in my amendments to promote a police service which interacts well with the community but which also understands its role within the community. Many of the Bill's provisions are in line with that and the change in emphasis is welcome but the legislation does not go far enough. My amendments propose that we go as far as we can to ensure An Garda Síochána is part of the community, is reflective of the community and works with the community by giving the leadership a police service can with the support of other service providers and the community.

I commend my amendments to the House. It will be interesting if the Minister rejects them because I cannot see how anybody could vote against such a proposition. It would be a major statement that we, in this House, will not allow members of An Garda Síochána to abuse and breach people's human rights and that if members do, they do so contrary to the objectives of the force. They should be dealt with by the force and the State accordingly.

5:00 pm

Photo of Joe CostelloJoe Costello (Dublin Central, Labour)
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We spent a great deal of time on this crucial section on Committee Stage because it deals with the functions of the Garda. It is worth deliberating for some time on what the force's functions should be in modern day Ireland. Should its primary function merely be to provide policing and security services for the State without reference to the citizen? Should its priorities be the preservation of peace and public order, the protection of life and property, the protection of the security of the State, which is referred to in section 6(1), bringing criminals to justice and regulating and controlling road traffic? As an afterthought, section 6(3) provides that, in addition to providing policing and security services — I am not sure how road traffic fits in with that — the Garda should have a role in immigration.

A great deal of messy thinking went into the drafting of the section. It is not coherent and it was not carefully thought out. In addition, it is not presented in a manner that puts the citizen first. During Private Members' business this week, I referred to the statement issued when the metropolitan police was established in 1829 and the enlightened manner in which the first commissioner, Sir Charles Rowan, outlined the role and the function of the force. He stated: "Every member of the force must remember that his duty is to protect and help members of the public, no less than to apprehend guilty persons." Members of the force were given a broad responsibility to deal with the public in a protective and helpful fashion. Rowan further stated: "Consequently, whilst prompt to prevent crime and arrest criminals, he must look upon himself as the servant and guardian of the general public." That is where the notion of the new police force as the servant of the people emanated from on the foundation of this State.

As we move through the 21st century, that notion has been lost to an extent in the Minister's outline of the functions of the Garda. The section refers to the provision of policing and security services for the State, which is blunt but not comprehensive. That is not what one would expect in a generous, open democracy, especially when one considers the progress in the development of the European Union model, the European Convention on Human Rights, which Ireland has ratified, and our Constitution, which espouses the individual rights of citizens. This is not reflected in the Minister's presentation of the core functions of the Garda.

We, in the Opposition, have attempted to put the citizen first in our amendments. Deputy Ó Snodaigh seeks the protection and promotion of human rights while I have proposed a function that not only preserves life and property but also the human rights of individuals within the State. Deputy Jim O'Keeffe's amendment seeks the respect of human rights of each individual. We should be able to rise to make that a core function of the Garda in this democracy in the 21st century.

The Minister will reply that he has not forgotten human rights and the entitlements of the citizen because they have been provided for in section 6(4), which states: "In performing its functions, the Garda Síochána shall have regard to the importance of upholding human rights." That is all very well but the force must have regard to many guidelines in performing its duties. This is a residual rather than a primary entitlement, which it would be if it were inserted as a core function.

Deputy Ó Snodaigh referred to the human rights audit conducted a few months ago which found the Garda to be severely lacking in a number of areas. The force left a great deal to be desired regarding the manner in which human rights were dealt with, respected and protected during its operations. I was happy that the Commissioner responded with alacrity and indicated that he would take on board every criticism in the human rights audit and take immediate steps to improve the situation. The audit is a substantial document comprising a couple of hundred pages of examination and critical assessment of the role and operations of the Garda Síochána. Given that it was found wanting in that respect so recently, one would have thought that the Minister would have taken that message on board in his presentation of the functions of the Garda.

Protecting the personal integrity of the State's citizens is one of the functions of the Garda Síochána. Detecting crime, pursuing criminals and so forth are also functions. The core function, however, must be the protection of life and the personal integrity of the citizen. The Minister should find a formula to include that in the legislation. It must be highly placed in the order of functions of the Garda. The new Garda Síochána will be committed to serving the citizen and the State and to protecting the bodily integrity of the citizen. That is what is required rather than the somewhat ad hoc list of functions and objectives included in an incoherent fashion in the Bill. The Minister could delete some of the later subsections and make clear what the primary functions of the Garda are.

They should be in accordance with our amendments. The fact that all the parties on this side of the House have put forward similar amendments indicates that there is something lacking in the Minister's expression of the functions of the Garda. The Minister could make some effort to take these proposals on board.

This is an important section and seems to state clearly what the primary core functions of the Garda Síochána are. It would be a shame if the Minister were not prepared to include the function that this side of the House considers to be absent. He is prepared to include "regulating and controlling road traffic" as a primary function or core value of the Garda. It is not, it is just one of the things gardaí must do and it is important that they do it. However, it is not at the same level of importance as protecting the human rights of citizens or protecting the bodily integrity of the citizen. I would appreciate it if the Minister would consider the amendment in that context.

Photo of Jim O'KeeffeJim O'Keeffe (Cork South West, Fine Gael)
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I am glad there is unanimity among all Opposition parties on the issue of protecting and promoting human rights. I invite the Minister to join that club. I am surprised that an issue such as the protection of human rights is not deemed sufficiently important to be a key function of the Garda Síochána. This matter was raised by the Human Rights Commission but I am not sure of the Minister's views on those who have a strong interest in human rights. I recollect a vague, slighting reference he made to some of them as being part of the human rights industry. If that is his personal view, it should not be reflected in legislation.

In modern times there is greater recognition of the importance of human rights. From that point of view it would be useful and progressive to include among the functions in section 7 that the Garda respect the human rights of each individual. It is not the end of the world if it is not included but I hope it will be. It could then possibly be a part of the training course or the re-training of gardaí. It is an effort to put the issue in lights, as it were. In the context of the new culture that we hope will develop in the Garda Síochána it would be useful to have it in this section.

Photo of Finian McGrathFinian McGrath (Dublin North Central, Independent)
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I strongly support amendments Nos. 19, 20 and 22. They are positive and constructive, particularly amendments Nos. 19 and 20. Amendment No. 19 refers to "protecting and promoting human rights". This is a topical and important issue. Internationally, standards appear to be dropping. It is also happening in this country. We must be on our guard with regard to respect for a human rights culture. That is important in the context of the debate on these amendments.

Issues such as Guantanamo Bay and the case of the Miami five show where there have been major abuses. That is unacceptable, internationally or nationally. We must be vigilant on this issue. Recent events in this country have shown that the human rights of the McBrearty family were attacked and destroyed. This also affected Mark McConnell and Richie Barron, his family and friends. The human rights of the victims must also be accorded the same importance. If these amendments are not included in the legislation, there will be potential for other miscarriages of justice in the future. We have seen what happened to the Birmingham Six, the Guildford Four and other cases, including the McBrearty family.

Amendment No. 19 is a reminder that we must be vigilant. Human rights apply to everybody. When talking about the human rights of prisoners, we must ensure that in defending those human rights we also defend the human rights of other citizens. People who are genuinely interested in human rights issues are often perceived or presented as anti-Garda. This is unacceptable for people who support human rights. It is not an option. If one supports human rights, it does not necessarily mean one is anti-Garda. One is pro-Garda and pro-quality policing. When one discusses this with gardaí, they are the first to accept that.

Amendment No. 20 is a strong amendment. It deals with protecting the security of and providing positive leadership in our communities. It is important that the security of communities is protected. Special attention should be paid to disadvantaged communities where the people's human rights are not being protected every day of the week. Families are living in flat complexes and huge estates dominated by drug barons and gang leaders. They intimidate people. After 9 p.m., it becomes a nightmare to live in many of these places. We should reflect on and support the human rights of the people to whom I refer.

It is not acceptable that the door to the flat of a disabled woman is kicked in every night while drug pushers are on the stairway outside. If she complains, she is intimidated. It is not acceptable that when elderly women telephone for help they receive an inadequate response when there are known drug dealers within 50 m of their front doors. These are the community issues surrounding amendment No. 20 which is concerned with respecting people's human rights, particularly those of communities.

In part of my constituency some years ago, the drug squad confiscated approximately €20 million worth of drugs. I commend it on that. Many people in the area, however, said it was only a small portion of what was happening. The Minister said today that there have been nine gangland murders this year. That may sound like a small number but those nine people should not have been murdered. Their deaths are connected with gangland activity and the widespread intimidation and fear it involves.

When I refer to human rights, I refer to the broad concept. Amendment No. 20 deals with the security of communities and the need to provide positive leadership. This is an issue for us, as legislators, and, in particular, for the Minister and other members of the Cabinet. We need to provide positive leadership in respect of it.

If legislation incorporates human rights, it prevents future cases of human rights abuses. This is an excellent proposal, not only in human terms but also in terms of cost in regard to State funding using taxpayers' money. For example, taxpayers will have to pay a couple of million euro for the McBrearty family's court and tribunal costs. The McBreartys deserve that payment. Amendments Nos. 19, 20 and 22 are progressive because, as well as being positive in nature, they will prevent future human rights abuses.

We must also accept that the views of the Irish public towards the accountability of the Garda Síochána reflect international trends and attitudes to police forces. According to Transparency International's Global Corruption Barometer 2004, respondents viewed the Irish police force as the fourth most corrupt sector, with political parties perceived as the most corrupt. It is interesting that political parties are viewed as more corrupt than the police force. The Irish police force scored 3.1 on a scale from not corrupt, 1, to extremely corrupt, 5. Political parties scored 3.9 and the media — none of whose members are here — scored 2.8. The military came out of the survey very well at 2.1. This is quality research on these issues.

These human rights issues are linked to accountability and professionalism in the police force. Amendment No. 20 is connected to communities. People who try to prevent crime in their communities should not be persecuted. I recall many cases of communities taking action against drug pushers only to be ridiculed and attacked in this House and in the media. I attended many of their meetings and marches and saw what was going on. They were trying to win back their communities yet they got only grief from many people in the so-called political establishment in this House. It is important, when talking about protecting the security of our communities, to also provide positive leadership.

Deputy Jim O'Keeffe's amendment No. 22 deals with respecting the human rights of each individual. That applies equally to prisoners and gardaí, to women living in flats complexes and to families living on large estates who are victimised and terrorised every night. It is not acceptable to allow that type of society to continue. We need proactive policies to deal with it and a quality drug squad that is prepared to target the resources. It should be intelligence-driven to deal with gangland leaders and drug barons so that the innocent are not caught up in criminal activity and are not bullied or intimidated.

Many innocent people, such as Mr. Fitzgerald, the bouncer at a Limerick nightclub, have paid the price for community action. I have met many people from Limerick who admired him. I understand that an individual is being charged with that crime. Many families have told me of Mr. Fitzgerald's efforts to prevent the spread of drug abuse and intimidation and occasionally to save teenagers in Limerick.

It is only fair to pay tribute to someone of that integrity and calibre. Mr. Fitzgerald was just one of many such people. I know many individuals in my constituency who have put their lives at risk to defend their communities but who have been intimidated and bullied. They continue nevertheless to do this work, often on their own. It is up to us, as Members of the Oireachtas, to ensure that their human rights are protected, especially those of the communities in the poorest areas.

People in most affluent communities are generally able to hire the proper back-up and advice. There are many people who have neither the ability nor the resources to protect themselves. These amendments add a human and a professional dimension to the legislation. I hope they will be accepted and lead to a radical change in the Garda Síochána, in society generally and in terms of how all people are treated.

Photo of Michael McDowellMichael McDowell (Dublin South East, Progressive Democrats)
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We live in a State with a constitution. All organs of the State are bound to uphold the Constitution and its values, and to act in a manner both consonant with it and demonstrably constitutional in every respect. That is not written into every statute but it is a fundamental rule of our law that every body created by law, and every organ under the Constitution, is bound by a fundamental duty to uphold the Constitution. This entails implementing constitutional values and working towards the achievement of constitutional aims.

Article 40.3.1 of the Constitution states "The State guarantees in its laws to respect ... and vindicate the rights of the citizen." That is a fundamental duty of every organ of the State. It applies to the Garda Síochána, the Army, the Oireachtas and the courts. That duty to uphold the rights of the citizen imbues every statutory creature this House brings into being.

No body established under our statute is independent of, or free from, the duty to uphold the Constitution or the duty of the State to protect and vindicate the rights of the citizen. That obligation goes further in regard to fundamental rights and involves citizens and non-citizens alike. The State must vindicate the fundamental rights of those present in our country regardless of whether they are citizens.

It gives me some pleasure to say that the source from which most of section 7 emanates is the Northern Ireland Police Act 1998.

Photo of Joe CostelloJoe Costello (Dublin Central, Labour)
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Wow.

Photo of Michael McDowellMichael McDowell (Dublin South East, Progressive Democrats)
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I am tired of being told that everything we do must reflect everything that happens in Northern Ireland and that we should not diverge, in any way, from that model. It is a case of "Four legs good, two legs bad". If it is north of the Border, it must be perfect, and everything that we do down here is second-rate in comparison. In section 18 of the Police (Northern Ireland) Act 1998, the general functions of the police force were stated to be to protect life and property, to preserve order, to prevent the commission of offences and, where an offence has been committed, to take measures to bring the offender to justice. Those are the functions of the Police Service of Northern Ireland as stated as recently as 1998 in its founding statute. I mention that solely to remind the House that what we are doing here is talking about the function of the Garda Síochána in the State. It is to provide policing and security services for the State, and its objectives are to preserve peace and public order, to protect life and property, to protect the security of the State, to prevent crime, to bring criminals to justice, including by detecting and investigating crime, and to regulate and control road traffic and improve road safety.

Photo of Joe CostelloJoe Costello (Dublin Central, Labour)
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I am afraid that they got it wrong in Northern Ireland.

Photo of Michael McDowellMichael McDowell (Dublin South East, Progressive Democrats)
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To the grounds that they had in Northern Ireland were added the road traffic and State security issues here, since the Garda Síochána is not only a police force but also a security force. If the Member wishes to know, that is where it came from. Since, by definition, in the language of most Deputies in this House, everything done up there is absolutely apple-pie perfect——

Photo of Finian McGrathFinian McGrath (Dublin North Central, Independent)
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I never said that.

Photo of Michael McDowellMichael McDowell (Dublin South East, Progressive Democrats)
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——this provision comes from there.

Photo of Joe CostelloJoe Costello (Dublin Central, Labour)
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The Minister should not slavishly follow them.

Photo of Michael McDowellMichael McDowell (Dublin South East, Progressive Democrats)
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I wondered whether I might elicit that from the Deputy.

Photo of Aengus Ó SnodaighAengus Ó Snodaigh (Dublin South Central, Sinn Fein)
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He should slavishly set an example.

Photo of Michael McDowellMichael McDowell (Dublin South East, Progressive Democrats)
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That is where it comes from. Into that section we inserted the provision "In performing its functions, the Garda Síochána shall have regard to the importance of upholding human rights." If subsection (4) had been transposed and made subsection (1), and the first thing stated regarding the functions of the Garda Síochána had been that "In performing its functions, the Garda Síochána shall have regard to the importance of upholding human rights", I do not think that we would be having this debate. However, because we took the Northern Ireland functions and added a few to them, with a new clause not present in the Northern Ireland Bill, it is somehow implied that we are downgrading the vindication of human rights in our society.

I do not agree with that. It is because the draftsman carefully inserted into this Bill that in doing everything, whether regulating road traffic, preventing crime, protecting the State's security, keeping peace and public order or bringing criminals to justice, "the Garda Síochána shall have regard to the importance of upholding human rights". That is across the board and a value explicitly stated in this statute. From that point of view, the draftsman got it right.

I can understand where Deputy Jim O'Keeffe's amendment comes from, but the objective is not to respect human rights. Respecting human rights is a constant value with which one must imbue all one's activities. Perhaps that is a matter of semantics, but there is no great division in principle. The law, as proposed in this Bill, does not dismiss human rights or downgrade them. It states that they will be an important duty for the Garda Síochána.

I ask the Deputies to consider section 15, which provides——

Photo of Jim O'KeeffeJim O'Keeffe (Cork South West, Fine Gael)
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If we ever get there.

Photo of Michael McDowellMichael McDowell (Dublin South East, Progressive Democrats)
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I hope that we are not changing it. It provides that a member of the Garda Síochána must make a declaration on the following lines:

I hereby solemnly and sincerely declare before God that—

I will faithfully discharge the duties of a member of the Garda Síochána with fairness, integrity, regard for human rights, diligence and impartiality, upholding the Constitution and the laws and according equal respect to all people

That is the duty of every member of the Garda Síochána. Making that declaration shows a fundamental commitment to human rights and constitutional values. Effectively, it is written into the contract of every aspirant member of the Garda Síochána. The Act states that, in pursuing its policing functions, which are similar to those of the Police Service of Northern Ireland, the Garda Síochána shall have regard to the need to uphold human rights.

We could write human rights into virtually every section of this Bill if we wished, and some people might be tempted to do so, but let us remember that this Bill is subject to the Constitution and must be construed in accordance with it. Since 2004, it has had to be interpreted in accordance with the European Convention on Human Rights. It is made very clear from the attestation oath or declaration of members of the force and the section that states that the force's functions that human rights are central to the activities of the Garda Síochána, and upholding them is a central value in carrying out every function, whether that be policing a U2 concert, interrogating a suspect, engaging in covert surveillance, community policing or dealing with young people or domestic violence. However one wishes to look at it, upholding human rights is stated in this statute to be a value that the Garda Síochána must bring to all its activities. I do not know how many times more that can be said. It is clear as day that upholding human rights is included in the Bill as presented to this House. No one could be against human rights.

Photo of Joe CostelloJoe Costello (Dublin Central, Labour)
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One must actively protect them.

Photo of Michael McDowellMichael McDowell (Dublin South East, Progressive Democrats)
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However, everyone must remember that no right, as the late John Maurice Kelly used to say in his jurisprudence lectures in University College Dublin, has reality unless a corresponding duty is owed. We live in a world where many people speak about their rights, but it is very unfashionable to talk about corresponding duties.

Photo of Joe CostelloJoe Costello (Dublin Central, Labour)
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That is Fine Gael philosophy. Fianna Fáil does not believe in it.

Photo of Michael McDowellMichael McDowell (Dublin South East, Progressive Democrats)
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If we have a right to live at peace within our community, we have a corresponding duty to ensure that all our actions are compatible. As parents, we must bring up our children to respect those things. In the way that we behave towards others, we owe duties as well as simply claiming rights. Too much of today's political debate consists of people attempting to categorise their demands and wishes as rights.

Photo of Joe CostelloJoe Costello (Dublin Central, Labour)
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That is not what we are saying here.

Photo of Michael McDowellMichael McDowell (Dublin South East, Progressive Democrats)
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People say that what they want is their right and that others owe them the vindication of those rights. If I am to accept Deputy Jim O'Keeffe's amendment, I propose to replace the word "respecting" with "vindicating".

Photo of Jim O'KeeffeJim O'Keeffe (Cork South West, Fine Gael)
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I am willing to accept that.

Photo of Michael McDowellMichael McDowell (Dublin South East, Progressive Democrats)
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I am satisfied to do that. However, this would leave me with a slight conundrum regarding what should happen to subsection (4).

Photo of Joe CostelloJoe Costello (Dublin Central, Labour)
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That subsection can be deleted.

Photo of Michael McDowellMichael McDowell (Dublin South East, Progressive Democrats)
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If the House is willing to accept a modification to Deputy O'Keeffe's amendment No. 22 to read "vindicating the human rights of each individual" and a corresponding deletion of subsection (4), I can live with that. To retain both would seem like poor draftsmanship, involving a repetition of what is said in the top paragraph at the bottom paragraph. If there is a consensus in regard to modifying Deputy O'Keeffe's amendment in this way and accepting a consequential amendment to remove subsection (4), I am willing to do so. This will prevent the House from dividing on the issue of human rights, a subject on which I presume we do not disagree.

Photo of Jim O'KeeffeJim O'Keeffe (Cork South West, Fine Gael)
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The word "vindicating" is stronger than the phrase "having regard to". If colleagues are agreeable, I welcome the proposal to accept my amendment as modified to use the word "vindicating". This would be stronger than subsection (4).

Photo of Joe CostelloJoe Costello (Dublin Central, Labour)
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It is good to see the Minister is coming on board and that the points raised by Opposition Members are getting some response from him. We are trying to achieve some insertion in this section to the effect that one of the core functions of the Garda Síochána is to respect and vindicate the rights of individuals. "Vindicating" is probably a better word than "respecting"——

Photo of Jim O'KeeffeJim O'Keeffe (Cork South West, Fine Gael)
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I agree.

Photo of Joe CostelloJoe Costello (Dublin Central, Labour)
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——because vindication implies not only respect but the requirement to stand up for and ensure human rights are protected.

I wonder, however, whether "individual" is the correct word to use or whether the provision should refer to the "human rights of each citizen".

Photo of Michael McDowellMichael McDowell (Dublin South East, Progressive Democrats)
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The use of the word "citizen" would exclude persons such as asylum seekers.

Photo of Jim O'KeeffeJim O'Keeffe (Cork South West, Fine Gael)
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The human rights of non-citizens must also be protected.

Photo of Joe CostelloJoe Costello (Dublin Central, Labour)
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That is true.

We are close to getting an acceptable formula that will satisfy the concerns of all. However, I also ask the Minister to consider whether the amendment should refer to "each individual" or "each person". I have my own amendment No. 21 in mind in querying whether "persons" is the correct word. Although that amendment refers to the "human rights of individuals", I was subsequently unsure whether "persons" might be a better word. I am not sure whether the Minister would consider it more appropriate.

Photo of Finian McGrathFinian McGrath (Dublin North Central, Independent)
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I accept the Minister's proposal. Deputy Jim O'Keeffe has indicated that "vindicating" is a good word to use and I welcome the Minister's response on this. However, regarding the Minister's comments about some of those concerned about human rights issues, those of us who constantly push that agenda totally accept that citizens have duties and responsibilities as well as rights. I reject the argument put forward by some who constantly demand their rights without any recognition of a need to adhere to civic duties. I accept that point. The latter is not a real human rights vision. In view of what the Minister has said, I welcome the proposal.

Photo of Aengus Ó SnodaighAengus Ó Snodaigh (Dublin South Central, Sinn Fein)
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I have no problem with the word "vindicating" but I do not see why the Minister cannot accept the phrase "protecting and promoting" as contained in my amendment No. 19. Perhaps he will explain that. This is the proper place to include such an objective. My amendment No. 89 flows from this in that the Garda Commissioner would have the duty to ensure this objective is promoted. If the Minister's proposal ensures it will be a duty to vindicate people's human rights, that is in line with what I have attempted in amendment No. 89.

My amendment No. 20 refers to the duty of the Garda to protect the security of our communities and to provide positive leadership within communities. The Minister has not given an adequate response on this issue. The inclusion of such a duty makes it a separate priority to those of protecting life and property. For too long, it has seemed for many communities that the priority of An Garda Síochána and its officers was to protect private property over and above the well-being of communities. This is one of the reasons I wished to insert this clause and it is important that it should be included in this part of the Bill.

The Minister referred to the Police (Northern Ireland) Act 1998. It is important that he should not be limited by that legislation. A desire for equivalence should not prevent us from going beyond the legislative provisions in place in Northern Ireland and attempting to set the standards. We have tended to look to the Patten report because the compilation of that report involved such an extensive trawl of policing models throughout the world. It has become a standard by which many societies are guided in terms of police reform. However, we should aim to set the standard beyond what is contained in the Police (Northern Ireland) Act 1998 and thereby force the authorities in that jurisdiction to react to the standards and positive changes in our legislation.

Photo of Rory O'HanlonRory O'Hanlon (Cavan-Monaghan, Ceann Comhairle)
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Does Deputy Ó Snodaigh wish to press amendment No. 19?

Photo of Aengus Ó SnodaighAengus Ó Snodaigh (Dublin South Central, Sinn Fein)
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I would like to see the exact wording of the amendment the Minister now proposes.

Photo of Rory O'HanlonRory O'Hanlon (Cavan-Monaghan, Ceann Comhairle)
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In regard to amendments being brought to the floor of the House, unless the wording is available immediately in writing for the Chair, I would prefer to suspend the sitting for five minutes until the wording is finalised.

Photo of Jim O'KeeffeJim O'Keeffe (Cork South West, Fine Gael)
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It will only take me a few minutes to draw up the wording for the Chair.

Photo of Rory O'HanlonRory O'Hanlon (Cavan-Monaghan, Ceann Comhairle)
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I would prefer to have the wording before me so we are sure we are getting it right. The Chair is prepared to facilitate the House by allowing time for the amendment to be written——

Photo of Michael McDowellMichael McDowell (Dublin South East, Progressive Democrats)
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I will have that amendment written for Deputy O'Keeffe in a moment. In the meantime, if the Chair permits, we can proceed to discuss the subsequent amendments.

Photo of Rory O'HanlonRory O'Hanlon (Cavan-Monaghan, Ceann Comhairle)
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I would prefer that they are taken in order.

Photo of Aengus Ó SnodaighAengus Ó Snodaigh (Dublin South Central, Sinn Fein)
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The Minister had the right to a two minute reply but I had not. I have the right, after I finish my two minute reply, to a final one and I did not yet do so. I only spoke twice.

Photo of Michael McDowellMichael McDowell (Dublin South East, Progressive Democrats)
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It is a pity the Deputy did not.

Photo of Rory O'HanlonRory O'Hanlon (Cavan-Monaghan, Ceann Comhairle)
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If it was the Deputy's final reply, he would not face a two minute restriction.

Photo of Aengus Ó SnodaighAengus Ó Snodaigh (Dublin South Central, Sinn Fein)
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It was not my final reply, it was only my second one.

Photo of Rory O'HanlonRory O'Hanlon (Cavan-Monaghan, Ceann Comhairle)
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It would be his final reply if nobody spoke after him.

Photo of Aengus Ó SnodaighAengus Ó Snodaigh (Dublin South Central, Sinn Fein)
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That was because the Ceann Comhairle proposed to move the amendment. I was waiting on the Minister's response to my question.

Photo of Rory O'HanlonRory O'Hanlon (Cavan-Monaghan, Ceann Comhairle)
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The Deputy sat down.

Photo of Aengus Ó SnodaighAengus Ó Snodaigh (Dublin South Central, Sinn Fein)
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I sat down but I was waiting on the Minister, who was entitled to respond for two minutes, and then I would make my final reply.

Photo of Rory O'HanlonRory O'Hanlon (Cavan-Monaghan, Ceann Comhairle)
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The Deputy will have the opportunity of a final reply.

Photo of Jim O'KeeffeJim O'Keeffe (Cork South West, Fine Gael)
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It occurs to me that the Ceann Comhairle's procedure is correct because, apart from changing one word in my amendment, it also involves deleting a subsection, as mentioned by the Minister. We probably need a minute——

Photo of Michael McDowellMichael McDowell (Dublin South East, Progressive Democrats)
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The certified text is now available.

Photo of Rory O'HanlonRory O'Hanlon (Cavan-Monaghan, Ceann Comhairle)
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Amendment No. 1 to amendment No. 22, which does not arise until we reach amendment No. 22, is to delete "respecting" and substitute "vindicating". Is that correct?

Photo of Michael McDowellMichael McDowell (Dublin South East, Progressive Democrats)
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Yes.

Photo of Joe CostelloJoe Costello (Dublin Central, Labour)
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We are not changing "individuals".

Photo of Michael McDowellMichael McDowell (Dublin South East, Progressive Democrats)
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No, we will leave "individuals".

Photo of Rory O'HanlonRory O'Hanlon (Cavan-Monaghan, Ceann Comhairle)
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That is the amendment which the Minister intends to propose when we come to amendment No. 22. It will have a consequence on amendment No. 26. We will have a new amendment No. 26a, which will delete lines 38 and 39 on page 11.

Photo of Joe CostelloJoe Costello (Dublin Central, Labour)
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Amendment No. 26 is my amendment.

Photo of Rory O'HanlonRory O'Hanlon (Cavan-Monaghan, Ceann Comhairle)
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Amendment No. 26a will be a new amendment.

Photo of Jim O'KeeffeJim O'Keeffe (Cork South West, Fine Gael)
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We will in effect be deleting subsection (4).

Photo of Rory O'HanlonRory O'Hanlon (Cavan-Monaghan, Ceann Comhairle)
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We will in effect delete lines to allow for the Minister's new amendment to amendment No. 22.

Photo of Jim O'KeeffeJim O'Keeffe (Cork South West, Fine Gael)
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That is my understanding of the situation.

Photo of Rory O'HanlonRory O'Hanlon (Cavan-Monaghan, Ceann Comhairle)
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Amendment No. 27 will then be withdrawn.

Photo of Jim O'KeeffeJim O'Keeffe (Cork South West, Fine Gael)
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I will withdraw amendment No. 27 in those circumstances.

Photo of Rory O'HanlonRory O'Hanlon (Cavan-Monaghan, Ceann Comhairle)
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We are still on amendment No. 19.

Photo of Aengus Ó SnodaighAengus Ó Snodaigh (Dublin South Central, Sinn Fein)
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At this stage, I will withdraw amendment No. 19.

Amendment, by leave, withdrawn.

Photo of Aengus Ó SnodaighAengus Ó Snodaigh (Dublin South Central, Sinn Fein)
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I move amendmentNo. 20:

In page 11, between lines 20 and 21, to insert the following:

"(b) protecting the security of our communities and providing positive leadership within our communities,".

Photo of Rory O'HanlonRory O'Hanlon (Cavan-Monaghan, Ceann Comhairle)
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Amendment No. 20 was discussed with amendment No. 19. Is Deputy Ó Snodaigh pressing his amendment?

Photo of Aengus Ó SnodaighAengus Ó Snodaigh (Dublin South Central, Sinn Fein)
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I will press it.

Amendment put and declared lost.

Photo of Joe CostelloJoe Costello (Dublin Central, Labour)
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I move amendment No. 21:

In page 11, line 21, after "property" to insert the following:

"and the human rights of individuals within the State".

Photo of Rory O'HanlonRory O'Hanlon (Cavan-Monaghan, Ceann Comhairle)
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Amendment No. 21 was discussed with amendment No. 19. Is Deputy Costello pressing his amendment?

Photo of Joe CostelloJoe Costello (Dublin Central, Labour)
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No, I withdraw the amendment in preference for the new amendment that has been proposed.

Amendment, by leave, withdrawn.

Photo of Rory O'HanlonRory O'Hanlon (Cavan-Monaghan, Ceann Comhairle)
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The Minister now proposes an amendment to amendment No. 22. Deputy Jim O'Keeffe to formally move this amendment. It has been discussed.

Photo of Jim O'KeeffeJim O'Keeffe (Cork South West, Fine Gael)
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I move amendment No. 22:

In page 11, between lines 21 and 22, to insert the following:

"(c) respecting the human rights of each individual,".

Photo of Michael McDowellMichael McDowell (Dublin South East, Progressive Democrats)
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I move amendment No. 1 to amendment No. 22:

To delete "respecting" and substitute "vindicating".

Photo of Jim O'KeeffeJim O'Keeffe (Cork South West, Fine Gael)
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I formally accept the Minister's amendment to my amendment.

Amendment to amendment agreed to.

Amendment No. 22, as amended, agreed to.

Photo of Rory O'HanlonRory O'Hanlon (Cavan-Monaghan, Ceann Comhairle)
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Amendments Nos. 23 and 87 are cognate and may be taken together by agreement.

Photo of Michael McDowellMichael McDowell (Dublin South East, Progressive Democrats)
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I move amendment No. 23:

In page 11, line 30, to delete "Government" and substitute "State".

These are technical drafting amendments advised by parliamentary counsel. While references to "Departments of Government" and "Departments of State" are to be found in various statutes, parliamentary counsel's preference is for "Departments of State" to be used. It is the modern usage.

Photo of Jim O'KeeffeJim O'Keeffe (Cork South West, Fine Gael)
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I have no problem with it.

Amendment agreed to.

Photo of Rory O'HanlonRory O'Hanlon (Cavan-Monaghan, Ceann Comhairle)
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Amendments Nos. 24 and 85 are related and may be taken together by agreement.

Photo of Jim O'KeeffeJim O'Keeffe (Cork South West, Fine Gael)
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I move amendment No. 24:

In page 11, between lines 32 and 33, to insert the following:

"(3) In achieving its objectives and performing its functions, the Gardaí shall have available to it modern and effective communications systems and leading edge technology for the recording of crime and the collation of data.".

I always held the view that the Garda Síochána should be the best police force in the world. Some of our painstaking efforts on this Bill are to lay the legislative basis for that. We have to look beyond bare legislation from the point of view of how best to achieve the desired outcome. It would be useful to highlight the fact that we cannot expect our police force to be the best in the world without providing the Garda with the most modern and effective communications systems and leading edge technologies for recording crime and collating data. This objective is shared by everybody in this House. Establishing this in legislation would reinforce the commitment to achieve that objective and provide the necessary resources to do so.

It would also instill the extra confidence which the Garda Síochána needs at present. Gardaí would realise that, while we set and demand high standards and results of them, we are prepared to support our approach with a commitment, underpinned by legislation, to provide the best resources and, in particular, modern technology so as to enable them achieve these results. This is my thinking on this matter. There is nothing dramatic about it. If gardaí felt that this message was coming from Leinster House, it could have a positive influence on morale.

Photo of Joe CostelloJoe Costello (Dublin Central, Labour)
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I fully agree with Deputy O'Keeffe's amendment. We discussed it on Committee Stage, when I believed that the Minister was interested in what was being said on the matter. It is a problem which we currently face with regard to the Garda. We have received complaints on mobile communication as well as in terms of the PULSE computer data and delays on the inputting of material and the management of that. The significant problems experienced with the roll-out of CCTV will be addressed in this legislation. However, it has dragged on for a long time. We saw the incredible situation in Donegal, where gardaí did not preserve the scene of the crime and did not seem to realise the importance of doing so. Even where hair, skin and blood was found, they simply walked or drove away from the situation.

Yesterday, Deputy Cowley described similar deaths, in counties Donegal and, I think, Mayo, where the crime scenes were not preserved for some reason. This was possibly because a traffic accident was involved. Whether it was a crime is another day's work. However, if the scene is not preserved, it is impossible to determine this. I have questions on the area of forensics. For far too long the Garda Síochána has relied on statements made by suspects to determine the outcome of crimes. In many cases this is the main evidence available and presented in court. Statements made by suspects should be down the list of importance of evidence. We should now be at the cutting edge of technology in forensic examination of a crime scene. We see daily on our television screens the extent to which the FBI can solve crimes throughout the United States. Every piece of information found on a crime from Alaska to Honolulu is packaged away and sent to the FBI who examine it so carefully and minutely that they are able to develop trends and strands and solve many crimes.

We have much to learn. Forensics is at a basic level here. We should have moved away from having trials within trials whereby after a jury is empanelled, it must wait a week or two while a judge hears argument on whether material such as confessions and statements is admissible in court. This should not happen as it delays trials, takes up people's time and causes expense.

There is too much reliance on the extraction of evidence or confessions during questioning of suspects. Perhaps that will all change when we have audio and video recording in all Garda stations and I was heartened to hear the Minister state we are at approximately 90%——

Photo of Michael McDowellMichael McDowell (Dublin South East, Progressive Democrats)
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It is at 96%.

6:00 pm

Photo of Joe CostelloJoe Costello (Dublin Central, Labour)
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That is wonderful. We can expect that all trials in the near future will not have that element where there is no technical back-up for statements that appear as part of the evidence and we will have the tape recording presented to court as support for any statements made.

We discussed having a root and branch examination of the Garda Síochána, and we must have such an examination of how it deals with crime scenes and crimes in general. The only crimes solved, except for a small number, are where people make confessions and people admit to them. In many cases this admission is to a lesser offence. It would be interesting to have proper statistical analysis and audit of what happens in our courts to see the level of Sherlock Holmes or FBI style success rate. It is extremely low.

Where there is pressure on the Garda Síochána it relies on admissions, extractions, questioning and interrogations. This, in many cases, has given a bad name to the methodologies used from the time of the heavy gang in the 1970s through to some activities at the present time. How could one have possibly extracted a confession from Frank McBrearty Jr. to a murder that never happened? How did that occur? Where is the answer to that? What pressure was brought to bear on him or who wrote the confession? If there was no murder there could not be a confession to a murder unless the gentleman in question was so perverse that in some strange way he wanted to take a dive of some description in relation to the criminal justice system. It is not tenable or logical. These serious questions must be answered.

Deputy Jim O'Keeffe raises the point that gardaí, in the performance of their duties, must have a good quality communications system. That is essential as the last thing one needs is to have criminals roaming the country with the ability to tune in to Garda wavelengths and listen to conversations. I understand that gardaí must often operate from their own mobiles because there has not been sufficient upgrading of Garda technology.

We could extend this amendment to not just cover the recording of crime and the collection and examination of data, but to include the work that must be carried out on that data, how comprehensively it can be done, and the forensic mechanisms available to examine the wide variety of data now available. This would enable us to move away from human to human, or garda to suspect, crime solution.

We are not at the cutting edge in this area which means we still rely on old methodologies that can give rise to many complaints. With our new Garda ombudsman or ombudsman commission, or whatever it will be when we finally leave here tonight, we must ensure gardaí can operate efficiently and effectively without entering a grey twilight zone of placing undue pressure on people to make statements they would not otherwise make as the only means of solving a crime.

I do not know if the Minister has plans in that area or whether Deputy Commissioner Fitzgerald's brief arising from the Donegal saga deals with it. I know his work is divided into approximately half a dozen headings to improve Garda operations and ensure the mistakes outlined by the Morris report are not made again. I hope one of the key areas he addresses is that of forensics and how modern technology can be employed to deal with crime. If that alone were done, and the Garda Síochána's view of crime solution was shifted from extracting a response from a person to dealing with the technological aspects that arise in every crime scene, we would have a good day's work done in improving the effectiveness of the Garda Síochána. It would also reduce the number of complaints forthcoming from people taken into custody or questioned.

Under the Criminal Justice Bill the Minister gives power to extend the period for which people can be detained for the purpose of questioning from eight hours to 24 hours without arrest. That is a serious change in the manner in which business is done. Up to 1984 people could not be questioned without being arrested. Now it will be the norm. It means many people will be brought in for questioning where evidence may not be as strong as it was in the past when arrest was necessary. We are coming in to a new age. If the Minister is to introduce the Criminal Justice Bill with all the extra powers it confers on the Garda Síochána and with the restrictions it imposes on citizens' rights in many areas, it is important he examines this area to try to obviate the need for the face to face activities that give rise to so many problems. There is much scope in the Bill in that respect.

Photo of Michael McDowellMichael McDowell (Dublin South East, Progressive Democrats)
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There would be a consensus on the thinking behind these amendments but the Bill is not the place to insert a wish list of items relating to technology or the like.

To give the House some information on, for instance, Garda communications, when I came into office I was made aware of a project that was being planned to purchase a digital radio system for the Garda Síochána at a cost of €200 million to €300 million. My major concern in regard to any item of that size and significance is whether we would get the right equipment or, having spent the €200 million or €300 million and had the usual overruns, I would be told a week later in the Garda Review that it was a poor system that was not as good as some other I should have purchased elsewhere. The recurring nightmare whenever the public sector and information technology come together is that a massive amount of money will be spent, we will be told it was the wrong purchase and be stuck with the wrong system.

Instead of that the CMOD unit in the Department of Finance is now putting together a package to offer a contract to run a system of digital communication for the Garda Síochána. It will be available also to the other blue light services — ambulance, Civil Defence, the Army and others who want to join in the system — so we will have a digital radio system across the State for State purposes. I am pleased the contracts for that will be going out to tender in January 2006. That is a much better outcome than what was about to happen otherwise and I am enthusiastically promoting it.

We have had pilot programmes on digital radio and we are aware of the issues. It is wrong in this day and age that gardaí are using analogue transmissions which are the subject of scanners by serious criminals. That cannot be stood over. Curiously, it may be that on occasion they would be better off using their digital phones than a radio transmission which is open to scanning. No Minister could stand over that and it is my intention to ensure the Garda Síochána has cutting edge technology available to it because our criminal confraternity is at the cutting edge in using technology for its purposes. It is wrong that the Garda Síochána should be following in the wake of events rather than be at the forefront of technological development.

I take Deputy Costello's point about issues such as forensics. However, while video recording takes place currently in 96% of cases, and a recent Superior Court judgment suggested that failure to record a confessional type statement, save in the most extraordinary circumstances, could have serious implication for those statements — we are moving rapidly to 100% — we should remind ourselves that Parliament passed a law relatively recently requiring judges to warn juries that uncorroborated confessions had to be dealt with with caution. That reinforces Deputy Costello's point that there must be corroboration if we are to have that kind of material. Nowadays, with DNA in particular, low level DNA is left in an extraordinary set of circumstances. If it is used it is very useful for giving the gardaí a clue as to who they are dealing with because it is almost impossible to grip the steering wheel of a car without leaving a trace of DNA behind. Even though in many cases such low level DNA may not prove guilt, it can provide the gardaí with a clue as to who they should be seeking. The question of DNA databanks for convicted criminals also comes into question in that respect. We should give the gardaí every possible technological assistance.

Going back to the Richie Barron death, which was such a terrible event, it beggars belief that there was not either the system or the equipment available to put a tent over the locus in quo where human flesh was found on a roadway in those circumstances. That is an issue which is addressed to some extent in the Criminal Justice Bill — the right to preserve a scene, including on private property. Apart from having legal provision for it, systems training and equipment are also issues. From what I gather from the Sophie Tuscan du Plantier case, and I say this as a layman not as Minister, there was a failure to have adequate protective equipment to preserve the scene long enough for forensic scientists and pathologists to get to it to make their examination. Those are issues on which there is major scope for learning and improvement in practice.

I agree the force must do everything the Deputies opposite spoke about but I do not see any particular reason to start making aspirational provision for it in the Bill. Imagine if the amendment stated the opposite, namely, "In achieving its objectives and performing its functions, the Gardaí shall not have available to it modern and effective communications systems and leading edge technology for the recording of crime and the collation of data". The amendment contains a fairly self-evident proposition that this is a desirable state of affairs.

There are many provisions I would like to include in the Bill such as a provision that every interview should be recorded or that the scene of a crime should never again be left in the state that Mr. Justice Morris found regarding the accident involving Richie Barron. This legislation is not meant to be a series of aspirations or best practice guidelines given by legislators to the gardaí. This is a constitutional framework for the Garda Síochána and it will be in the context of directives, annual policing plans, the professional standards units and the inspectorate that best practice will evolve and that issues of this kind will be brought to the fore rather than by contenting ourselves that we have dealt with the matter because we have put something on the Statute Book.

Whereas I fully accept what Deputy O'Keeffe is trying to achieve in his amendments Nos. 24 and 85, in truth they are better put into practice rather than left on the dusty page of a statute. Putting them in a statute does not advance the issue one way or the other. I ask Deputy O'Keeffe not to press the amendment, having fully accepted the gravamen of what he and Deputy Costello said about the importance of these issues.

Photo of Jim O'KeeffeJim O'Keeffe (Cork South West, Fine Gael)
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In some ways what I want to do is get a message to the Garda Síochána, not just from Fine Gael but from this House——

Photo of Michael McDowellMichael McDowell (Dublin South East, Progressive Democrats)
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A positive message.

Photo of Jim O'KeeffeJim O'Keeffe (Cork South West, Fine Gael)
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——that we expect the highest standards but are prepared to provide the best support to ensure those high standards can be achieved and maintained. I listened to the Minister's response and I take on board the fact that he accepted there is a need for the best resources and technology, whether it be from the point of view of communications or otherwise, and that they must be made available to the Garda Síochána. The message should go from this House on a unanimous basis that we are prepared to do that and that the exercise in which we are involved is not only a bashing exercise or a demanding exercise. Having said that, there are some demands and I have no hesitation in demanding the highest standards from the Garda Síochána. However, if that message is coupled with a commitment to providing the best resources and equipment to the Garda Síochána to enable its members to achieve those high standards and to have best practice, I will be satisfied.

However, as I understand the point of not recording every such aspiration in legislation, I will not press the amendment at this stage.

Photo of Joe CostelloJoe Costello (Dublin Central, Labour)
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Can I make a point before the amendment is withdrawn?

Photo of Rory O'HanlonRory O'Hanlon (Cavan-Monaghan, Ceann Comhairle)
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I would prefer to move on. As the proposer of the amendment has withdrawn it, there is no point discussing it.

Photo of Joe CostelloJoe Costello (Dublin Central, Labour)
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Very good.

Amendment, by leave, withdrawn.

Photo of Rory O'HanlonRory O'Hanlon (Cavan-Monaghan, Ceann Comhairle)
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We move to amendment No. 25. Amendment No. 1 to amendment No. 25 is related. Amendment No. 26 is an alternative to amendment No. 25. Amendments Nos. 25 and 26 and amendment No. 1 to amendment No. 25 may be discussed together.

Photo of Michael McDowellMichael McDowell (Dublin South East, Progressive Democrats)
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I move amendment No. 25:

In page 11, to delete lines 33 to 37 and substitute the following:

"(3) In addition to its function under subsection (1), the Garda Síochána has such functions as are conferred on it by law including those relating to immigration.".

I undertook to re-examine the wording of the original section in response to Deputy Costello's criticisms of the original drafting. The Parliamentary Counsel provided an improved formulation which I hope is satisfactory to everyone.

Photo of Joe CostelloJoe Costello (Dublin Central, Labour)
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We are still not satisfied. I do not know whether the Minister has seen it, but I have tabled an amendment to his amendment. I move amendment No. 1 to amendment No. 25:

To delete "has such functions as are conferred on it" and substitute "and its members have such functions as are conferred on them".

The Minister is correct that I was initially unhappy with the wording of the section. Section 7(3) states: "In addition to providing policing and security services, the Garda Síochána's functions are to provide any other services ...". I sought to tighten this up by stating the Garda Síochána "shall" provide services. The Minister then introduced amendment No. 25. My amendment is to the effect that it is not proper to refer to the Garda Síochána as a body and that the Bill should refer to the members of the Garda Síochána. If amendment No. 25 was allowed to stand, it would be improper in a legal fashion.

While I do not have a general difficulty with the manner in which the Minister has tried to introduce the amendment, it is flawed if left as it is. All of the functions under subsection (1) were those referring to the functions of the Garda Síochána, such as preserving the peace and public order. Then, we are referring to a function that is not the function of——

Photo of Michael McDowellMichael McDowell (Dublin South East, Progressive Democrats)
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I can shorten this discussion by stating I am happy to accept the Deputy's amendment.

Photo of Joe CostelloJoe Costello (Dublin Central, Labour)
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I am getting through. It is an important amendment.

Photo of Michael McDowellMichael McDowell (Dublin South East, Progressive Democrats)
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It improves the Bill.

Photo of Joe CostelloJoe Costello (Dublin Central, Labour)
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Otherwise we would address the wrong body. We should address the members of the force.

Amendment to amendment agreed to.

Amendment No. 25, as amended, agreed to.

Amendment No. 26 not moved.

Photo of Michael McDowellMichael McDowell (Dublin South East, Progressive Democrats)
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I move amendment No. 26a:

In page 11, to delete lines 38 and 39.

Amendment agreed to.

Amendments Nos. 27 to 29, inclusive, not moved.

Photo of Rory O'HanlonRory O'Hanlon (Cavan-Monaghan, Ceann Comhairle)
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Amendments Nos. 30 and 32 are related and may be discussed together.

Photo of Joe CostelloJoe Costello (Dublin Central, Labour)
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I move amendment No. 30:

In page 12, to delete lines 1 to 3 and substitute the following:

"(5) The powers, immunities, privileges and duties of members of the Garda Síochána under or by virtue of this Act, any other enactment or at common law are exercisable in furtherance and for the more effectual performance of the functions of the Garda Síochána referred to in this section and for no other purpose.".

Photo of Michael McDowellMichael McDowell (Dublin South East, Progressive Democrats)
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I do not see the need for these amendments.

Photo of Joe CostelloJoe Costello (Dublin Central, Labour)
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Is there any particular reason for that view?

Photo of Michael McDowellMichael McDowell (Dublin South East, Progressive Democrats)
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The Deputy has not provided a reason for making the amendments. I am in a bit of a quandary but I do not believe the amendments are necessary and I am not disposed to accept them.

Photo of Joe CostelloJoe Costello (Dublin Central, Labour)
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The amendment seeks to delete section 7(5) of the Bill, which states: "This section does not affect any powers, immunities, privileges or duties that members of the Garda Síochána have by virtue of any other enactment or at common law." The Bill at section 6 makes a statement as to duty and functions but this is effectively removed at section 7(5). Having made a positive statement, the Bill now negatives this and provides an opt-out or disregard.

The subsection states that the section "does not affect any powers" of "any other enactment or at common law". What does that mean? The powers of a garda or of the police force at common law are widespread. At common law a garda has powers of arrest and powers to act independently without reference to a commissioner or anybody else. The powers of common law do not come within the ambit of the statute. They are wider powers granted to the original constables. What is the meaning of this subsection? Can a member of the Garda Síochána operate independently under common law as a surrogate peace officer, with all powers of arrest, based on his or her opinion and without reference to anyone else?

I am not satisfied on two counts, first, that the Minister should take away from the proactive strength of what is being proposed and, second, I am not clear what is meant by "any other enactment" or "common law" in this context. I see the common law as having given a certain degree of independence to a member of the Garda Síochána that can be operated irrespective of other duties that might be conferred by statute.

Photo of Michael McDowellMichael McDowell (Dublin South East, Progressive Democrats)
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I do not know whether Deputy Costello can remember in the recesses of his mind there being large notices outside Garda stations concerning the Noxious Weeds Act and like matters. The local sergeant was supposed to inspect fields for nettles, thistles and the like.

Photo of Aengus Ó SnodaighAengus Ó Snodaigh (Dublin South Central, Sinn Fein)
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And ragwort.

Photo of Michael McDowellMichael McDowell (Dublin South East, Progressive Democrats)
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Correct. He was supposed to chase around his patch making sure these noxious weeds were not present. That is a statutory function the police had under that legislation. The mere fact that one may find chasing ragwort around fields difficult to reconcile with section 7(1) does not mean gardaí no longer have that function. That is what this section does. We do not want a situation where a garda exercises some power under the Musk Rats Act or the Noxious Weeds Act, and a clever lawyer asks in court how this is compatible with section 7 of the Garda Síochána Act. Since the Garda Síochána Bill comes after previous legislation the clever lawyer might argue its effect was to wipe out areas of competence for the Garda Síochána existing under common law or statute. That is what we are trying to prevent. Deputy Costello's amendment is implying that no power under any statute, such as the Noxious Weeds Act, will survive this unless it is compatible with section 7(1). We do not want to go down that road.

One of the things we try to avoid in this House is unintended consequence. I do not want a situation where some clever young lawyer will announce that a whole collection of law has become unenforceable because it cannot easily be tied into the objectives set out in section 7(1).

I will give the Deputy an example of the common law power of the police. There is plenty of case law, in the UK at any rate, that the police have as part of their common law powers. They have the power to take pre-emptive action to stop a breach of the peace or to stop hunters. In order to stop things getting out of control the police can intervene in a pre-emptive way. These are a constable's common-law powers, similar to what the Garda Síochána have under our system. I do not want that to be obliterated on the afternoon of 23 June 2005 in the Dáil by our setting out functions for gardaí that do not seem to uphold that power.

Amendment, by leave, withdrawn.

Photo of Rory O'HanlonRory O'Hanlon (Cavan-Monaghan, Ceann Comhairle)
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Amendment No. 31 is out of order.

Amendments Nos. 31 and 32 not moved.

Photo of Rory O'HanlonRory O'Hanlon (Cavan-Monaghan, Ceann Comhairle)
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Amendments Nos. 33, 34 and 35 are related and may be discussed together.

Photo of Joe CostelloJoe Costello (Dublin Central, Labour)
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I move amendment No. 33:

In page 12, line 30, after "circumstances" to insert the following:

"either at all or without a specific direction from the Director of Public Prosecutions".

This relates to the desire of the Minister that all prosecutions emanate from the Director of Public Prosecutions and to give a standard, unifying mechanism for prosecutions. If my amendment were accepted section 8(5) would read:

Directions under subsection (4) may be of a general or specific nature and may, among other things, prohibit members of the Garda Síochána from—

(a) instituting or conducting prosecutions of specified types of offences or in specified circumstances, either at all or without a specific direction from the Director of Public Prosecutions.

This makes clear that the Director of Public Prosecutions is entitled to prohibit members from instituting certain kinds of proceedings, either at all or without specific reference to him. It seems this would improve the situation by clarifying it. It is consistent with what the Minister seeks to achieve in this legislation, namely, prohibiting members of the Garda Síochána from the institution of prosecutions and transferring the function exclusively to the DPP.

Photo of Michael McDowellMichael McDowell (Dublin South East, Progressive Democrats)
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This arose on Committee Stage and my officials sent the transcript of the exchanges we had to the DPP. I undertook to consult with the DPP on similar provisions, which Senator Tuffy raised in the Seanad. The DPP agrees with my view that amendment No. 33 is not required. Concerning amendment No. 34 the DPP believed the proposed amendment would cause difficulties in the prosecution of cases. I do not want to make the life of the DPP more difficult so I am not disposed to accepting it. The DPP was also in agreement with my view that amendment No. 35 was an unnecessary provision. Though I consulted with the DPP on those three counts we are not bound by him. I am deferential to his views as he will have to live with all of this. The reaction of the DPP was to urge me not to accept these amendments.

Photo of Joe CostelloJoe Costello (Dublin Central, Labour)
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I did not realise the three amendments were being discussed together. Let us consider amendment No. 35. It reads:

In page 12, line 44, after "Síochána" to insert the following:

"(which the Director of Public Prosecutions is hereby empowered to do)".

In this legislation the section "precludes the Director of Public Prosecutions from, at any stage of the proceedings, assuming the conduct of a prosecution instituted by a member of the Garda Síochána". This amendment positively confirms that the DPP is empowered.

Photo of Michael McDowellMichael McDowell (Dublin South East, Progressive Democrats)
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The implication would be that without the Deputy's amendment the DPP was not empowered. The DPP would not accept that proposition.

Photo of Joe CostelloJoe Costello (Dublin Central, Labour)
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Would the Minister not accept that proposition? There must be thousands of prosecutions that take place in the District Court every year about which the DPP has no clue. Let us consider amendment No. 34, which states:

In page 12, line 40, after "direction" to insert the following:

", provided that where it is ascertained that a failure to comply with this section or that direction has occurred, the criminal prosecution concerned shall be stayed pending a specific direction from the Director of Public Prosecutions".

If the DPP is taking responsibility for a prosecution as instituted by the Garda Síochána, for whatever reason, surely there is need for some mechanism and a period of time to enable the DPP to come on board and be informed of the situation so he can give specific direction on the matter. By and large, the DPP knows nothing of what is taking place in the District Court. It is at a later stage, relating to matters of indictment, that the DPP is aware of prosecutions taking place. If we are to tighten up this process it is important that we are more specific and that there is the space and time for specific direction from the DPP if that office is taking over from the Garda Síochána, which instituted it. It has been instituted in the name of the DPP but that does not mean he or she knows about it. The process is a formality. It should be built into the legislation that he is empowered to take over the direction. It should be specified that there will be a period of time for him to be able to direct the prosecution after it has been initiated by somebody else. By tabling these amendments, I am trying to put the Director of Public Prosecutions more at the centre in dealing positively with matters.

Photo of Brian Lenihan JnrBrian Lenihan Jnr (Minister of State, Department of Education and Science; Minister of State, Department of Justice, Equality and Law Reform; Minister of State, Department of Health and Children; Dublin West, Fianna Fail)
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I appreciate the spirit in which Deputy Costello has tabled these amendments but the Minister consulted with the Office of the Director of Public Prosecutions in regard to them. The first amendment is already comprehended in the section which is establishing a framework within which the DPP will operate. The section deals with the question of directions by the DPP in any event, and the Office of the DPP is in agreement with this view.

As regards the second amendment, the intention behind subsection (6) is to ensure a prosecution will not be invalidated because a garda has failed to comply with a direction from the DPP. There is a similar provision in the Criminal Justice Act 1984, which provides that a prosecution is not invalidated by reason of a breach of the custody regulations. The latter is, of course, a more serious matter. The DPP's office maintains the proposed amendment would cause difficulties in the prosecution of cases and for that reason the Minister is opposed to it.

The Minister is also opposed to the third amendment, which he considers to be unnecessary, and the DPP's office is in agreement with the Minister in this regard. In short, therefore, the Minister has consulted with the Director of Public Prosecutions who is satisfied with the framework envisaged in section 8. These amendments are not necessary for the effective operation of the section.

Photo of Joe CostelloJoe Costello (Dublin Central, Labour)
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I suppose if the DPP and the Minister are of one mind, I had better leave it at that.

Amendment, by leave, withdrawn.

Amendments Nos. 34 and 35 not moved.

Photo of Gerard MurphyGerard Murphy (Cork North West, Fine Gael)
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I move amendment No. 36:

In page 13, between lines 7 and 8, to insert the following:

"9.—Notwithstanding any other enactment, where a person has been convicted of the murder or manslaughter of a member of an Garda Síochána, he or she shall not be given preferential treatment while in the custody of the State.".

There was extraordinary public disquiet at the prospect of the early release of the killers of Jerry McCabe. There is a certain amount of concern and anger at the perception that these people are receiving special treatment and are doing soft time for the crimes they have committed. This amendment seeks to send out a clear message that those days are well and truly over and that such a situation will never recur. People who kill members of the Garda Síochána must not be treated differently, no matter what the circumstances.

Photo of Brian Lenihan JnrBrian Lenihan Jnr (Minister of State, Department of Education and Science; Minister of State, Department of Justice, Equality and Law Reform; Minister of State, Department of Health and Children; Dublin West, Fianna Fail)
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The Minister is not accepting this amendment, which has nothing to do with this particular legislation. I appreciate why the amendment has been tabled, but it relates to a matter of policy that might arise for consideration in the context of prisons legislation or a criminal justice Bill. This amendment seeks to introduce a rule or legal principle on the treatment of convicted offenders. Clearly, however, the appropriate place for that is in parole or prisons legislation which deals with the detention and treatment of offenders. The matter is not appropriate to the Bill before the House.

Naturally, everyone on all sides of the House wants to see the life and personal integrity of every member of an Garda Síochána being respected. That is not in dispute. The Minister wishes to record the fact that the killers of Detective Garda Jerry McCabe will serve their sentences. The area in which they have been detained, since 1999, is an open area of Castlerea prison. The Minister wishes to make it clear that under no circumstances could it be described as living in luxury. These prisoners and others, including other persons with convictions for rape and murder, are under no illusion but that they are in prison and that they will remain there for the duration of their sentences.

They also know that the Minister will not hesitate to return them to Portlaoise Prison if that was warranted by any behaviour on their part. The Minister wishes to refute most emphatically any idea that persons in this category have received, or will receive, preferential treatment.

Photo of Gerard MurphyGerard Murphy (Cork North West, Fine Gael)
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I welcome the Minister's response. Deputy Jim O'Keeffe's motive in tabling the amendment was that this clear message should emanate from the House in the context of the Garda Síochána Bill. However, if it is more appropriate to another Bill, I am quite willing to accept that.

Amendment, by leave, withdrawn.

Séamus Pattison (Carlow-Kilkenny, Labour)
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Amendments Nos. 37 to 41, inclusive, are out of order. I call Deputy Ó Snodaigh to move amendment No. 42.

Amendments Nos. 37 to 41, inclusive, not moved.

Photo of Joe CostelloJoe Costello (Dublin Central, Labour)
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We could do with some extra Members in the House to hear the eloquence of Deputy Ó Snodaigh.

Photo of Aengus Ó SnodaighAengus Ó Snodaigh (Dublin South Central, Sinn Fein)
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Very good.

Notice taken that 20 Members were not present; House counted and 20 Members being present,

Photo of Aengus Ó SnodaighAengus Ó Snodaigh (Dublin South Central, Sinn Fein)
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I move amendmentNo. 42:

In page 13, between lines 19 and 20, to insert the following:

"(2) The appointment of a Deputy Garda Commissioner and Assistant Garda Commissioner will be merit-based, and subject to a transparent public recruitment process.

(3) The appointment of a Deputy Garda Commissioner and Assistant Garda Commissioner will be subject to ratification by Bord an Gharda Síochána.".

Is é an fáth gur chuir mé an leasú seo síos ná go bhfuil mé ag iarraidh déanamh cinnte de go roghnaítear daoine do na postanna tábhachtacha seo ar bhonn córais oscailte. Is oth liom nár glacadh leis an leasú, mar luaigh mé bord an Gharda Síochána. Glacadh le leasú eile de mo chuid a luaigh bord an Gharda Síochána, ach rialaíodh an ceann sin as ord. Tugann sé seo an deis dom míniú cad é bord an Gharda Síochána agus cad a bhí i gceist agam. Ní bhfuair mé an deis roimh ré.

Má tá muid chun glacadh leis an leasú seo, caithfidh muid an míniú sin a thabhairt. Ba é an rud a bhí i gceist ná go ndéanfaí cinnte de go gcruthófaí bord neamhspleách saoránach do phóilíneacht ar bhonn reachtúil. Bheadh an bord sin ag feidhmiú mar chomhlacht saoránach ar a mbeadh freagracht Choimisinéar an Gharda. Comhlíonfaidh sé gné eile den chúram a bhí molta d'fhoireann cigireachta. Cuirfidh sé maoirseacht bainistíochta ar fáil ar ábhair mar earcaíocht, cáilíochtaí, caighdeán oiliúna, treallamh, lóistín, eagrú, modhanna agus sárchleachtadh. Nuair a chuir muid an achainí os comhair an Aire i Samhain 2003, nuair a lorg sé aighneachtaíón phobal i leith Bhille an Gharda Síochána, dúirt muid gur chóir go mbeadh bord póilíneachta ann a bheadh neamhspleách ar bhainistíocht na ngardaí, go mbeadh sé ionadaíoch, go mbeadh an próiseas ceapacháin trédhearcach, bunaithe ar fhiúntas agus neamhspleách ar na gardaí. Tá sé sa leasú seo, áit ar leag muid síos that the appointment be merit-based and subject to a transparent public recruitment process.

Lean muid ar aghaidh á rá gur cheart go gceapfaí na gardaí sinsireacha ar bhonn an phróisis seo. Bheadh cruinnithe poiblí míosúla ann le Coimisinéar an Gharda chun tuairiscí a fháil ar an bhainistíocht. Mhol muid cumhachtaí eile don bhord póilíneachta. Le déanamh cinnte de go mbeadh an bord trédhearcach ó thús, dá mbeimis ag toghú Choimisinéar an Gharda nó Leas-Choimisinéar, ba cheart dóibh tuiscint go díreach cad atá i gceist anseo.

Sin cuid den mheascán de ghnéithe éagsúla a bhíá gcur chun cinn againn san achainí a dhein muid agus sa pholasaí a chuir muid os comhair an Aire.

I proposed initially the establishment of bord an Gharda Síochána and that the members of the board would be nominated by the Minister, following a transparent public recruitment process based on published criteria. I went further in that I wanted to ensure the appointment of the deputy Garda commissioner and the assistant Garda commissioner would be merit-based, rather than that they be appointed because they knew somebody, did somebody a favour or had been around for a long time. That is the reason for this amendment. I include the caveat that not only should they be appointed on the basis proposed in the amendment, but that the board should have a final say and the appointment should be subject to ratification by the board.

I will explain how the board we suggested would be selected. It was intended that members of the board would be nominated by the Minister, following a transparent public recruitment process based on published criteria, where the Minister was satisfied the proposed members of the board had appropriate expertise, qualifications, training or experience, and in accordance with a series of subsections. It was proposed that no fewer than one third of the members of such a board would be cross-party public representatives, no fewer than one third would be representative of statutory agencies and no fewer than one third would be representative of the community and voluntary sector. I proposed also that no fewer than 50% of the members of bord an Gharda Síochána would be women.

I proposed that nominations to the board should be made on the basis of positive action, with a view to ensuring the membership would be diverse and as representative as possible of all sections of society, including and in particular, working-class people, ethnic minorities, Travellers, people with disabilities and lesbian, gay and bisexual people. I also proposed that the chairperson of the board should be nominated and elected by its members and that the elected representatives should not be eligible to hold the chair. My proposal is not entirely unlike the Minister's proposed inspectorate under Part 5 or not entirely unlike Deputy Costello's proposal for a police authority.

The proposed purpose of bord an Gharda Síochána would be to provide civilian management oversight with regard to recruitment qualifications, training standards, equipment, accommodation, distribution, organisation, methods, procedures and practices of an Garda Síochána. It would not only support the desire to achieve and practise international best standards of efficiency and effectiveness, but would foster public confidence in the service.

I intended to require by statute that the members of bord an Gharda Síochána should familiarise themselves with international best practice, including human rights standards on policing. This ties in with the need for the appointment to the high office positions of deputy Garda commissioner and assistant Garda commissioner to be merit-based. Those who go forward for selection should be familiar with international best practice so they could work with the members of the board and ensure that best standards in policing were maintained.

I wanted the board to have the power to appoint members of the Garda Síochána to senior ranks and made this proposal in subsection (3) of my amendment. This would be on the basis of the same transparent process. The board would review their performance and hold them accountable for their action or inaction. In contrast to the Minister's proposals, I wanted this board to meet monthly and in public and that the Garda Commissioner should be present for at least part of each meeting to present a report or reports and answer questions from members of the board. In that context, the chair of the board would present the formal report to the Garda Commissioner on behalf of bord an Gharda Síochána as necessary. Copies of such reports would also be provided to the Minister.

I intended that the members of bord an Gharda Síochána would have the opportunity and responsibility to question the Garda Commissioner, to communicate concerns and priorities to him or her, and to make recommendations as necessary. I also proposed that the Garda Commissioner should be required to make available all information requested by bord an Gharda Síochána, unless the members agreed that it was clearly in the public interest to withhold such information on the basis of a serious threat to public security or safety, the safety of an individual or the need to refrain from jeopardising an investigation or prosecution. If the board considered that the terms of the test had not been met, I proposed that it could decide to hold certain sessions other than in public for the purpose of receiving information from the Garda Commissioner. The board would have to agree that to do so was necessary to safeguard the public from a serious threat to public security, public safety or the safety of an individual or to refrain from jeopardising an investigation or prosecution. I wanted to propose that the Garda Commissioner be required to provide an explanation for his or her decisions as well as the decisions and actions or inactions of those under his direction and control if requested by the proposed board to do so.

I also wanted to propose that bord an Gharda Síochána be charged with agreeing short-term, medium-term and long-term strategic priorities and objectives for an Garda Síochána. I wanted to propose that the board be allowed to provide details of the priorities and objectives to the Minister, as part of the process of setting ministerial priorities and performance targets under section 19, and to the Garda Commissioner, as part of the process of agreeing strategy statements under section 20 or annual policing plans under section 21.

Needless to say, I think the Minister should be required to consult a board like bord an Gharda Síochána and to have due regard to its views when he or she is setting priorities and performance targets for an Garda Síochána under section 19. Likewise, the Garda Commissioner should be required to consult such a board and have due regard to its views when he or she is formulating and implementing strategy statements under section 20 or annual policing plans under section 21.

I wanted to propose that bord an Gharda Síochána be charged with monitoring the performance and budget management of the Garda against the priorities and performance targets drawn up under section 19, the strategy statements drawn up under section 20 and the annual policing plans drawn up under section 21. I intended to suggest that the board would monitor the performance and budget management of the Garda in the context of its own recommendations under the proposed section 119. It could also conduct such monitoring in light of any other indicators which it deems appropriate. I wanted to propose that the board could make recommendations to the Garda Commissioner and the Minister, as appropriate, based on its assessment. Such recommendations could relate to resource allocations, policy change or change of practice. The Garda Commissioner and the Minister would be required to take due regard of such recommendations.

It was my intention to propose that bord an Gharda Síochána be able to refer such matters as it deemed necessary and appropriate to the ombudsman of an Garda Síochána and to the Comptroller and Auditor General. I wanted to propose that the board be allowed to establish independent inquiries into certain matters, as it deemed appropriate, having due regard to the public interest.

Finally, I wanted to propose in a spirit of accountability that bord an Gharda Síochána be required to publish an annual report. I proposed to require the board to furnish copies of the report to the Garda Commissioner and the Minister for Justice, Equality and Law Reform and to lay copies of it before the Houses of the Oireachtas.

As I have said, it is a pity that my proposals in respect of bord an Gharda Síochána have not been taken on board to date. Even if my amendment No. 42 were accepted, the effect of it would be lost to a certain extent because the other amendments have been ruled out of order. I wanted to put amendment No. 42 in the context of the entire jigsaw into which it fits. I did not refer to bord an Gharda Síochána in the amendment without making provision for it elsewhere. It was a central part of the positive and well worked ideas I intended to propose to ensure that this Bill established a one-person Garda ombudsman as well as bord an Gharda Síochána which I have mentioned. I also proposed the establishment of community policing structures, known as páirtnéireachtaí póilíneachta phobail, on a lower level than the structures suggested by the Minister. The structures would be accountable to the communities in which gardaí would work.

Most of my proposals were outlined in the submission Sinn Féin made to the Minister. I favour the introduction of community partnerships which are akin to the policing fora which have been established in recent years. Such fora have not been properly resourced and do not have the statutory basis they deserve. The community structures I proposed would be on a lower basis. There would be one community policing partnership in each police district. I do not agree with the Minister's suggestion that one partnership should serve an entire local authority area.

Each of my proposals is a piece of the overall jigsaw. That the rest of my amendments have been ruled out of order does not mean that the Minister cannot take on board amendment No. 42, which proposes that: "The appointment of a Deputy Garda Commissioner and Assistant Garda Commissioner will be merit-based, and subject to a transparent public recruitment process." I accept that the second part of the amendment would not have much meaning unless the Minister were to take on board all the other related amendments which have been ruled out of order.

The full sense of my party's proposals in this regard can be gleaned if one examines amendment No. 1, which proposed a change to the Long Title of the Bill. That amendment recommended that the Bill should establish:

THREE BODIES FOR THE PURPOSE OF ACHIEVING THE HIGHEST LEVEL OF PUBLIC CONFIDENCE IN AND CO-OPERATION WITH AN GARDA SÍOCHÁNA, INCLUDING A BODY TO BE KNOWN AS OMBUDSMAN AN GHARDA SÍOCHÁNA FOR THE PURPOSES OF ENSURING TRANSPARENCY AND ACCOUNTABILITY IN THE PROCESS OF INVESTIGATING COMPLAINTS AGAINST THE GARDA SÍOCHÁNA, A BODY TO BE KNOWN AS BÓRD AN GHARDA SÍOCHÁNA FOR THE PURPOSE OF CIVILIAN OVERSIGHT IN THE MANAGEMENT OF AN GARDA SÍOCHÁNA, AND BODIES TO BE KNOWN AS PÁIRTNÉIREACHTAÍ PÓILÍNEACHTA PHOBAIL, OR IN THE ENGLISH LANGUAGE, COMMUNITY POLICING PARTNERSHIPS, FOR THE PURPOSE OF FOSTERING LOCAL CO-OPERATION AND HOLDING AN GARDA SÍOCHÁNA ACCOUNTABLE TO THE COMMUNITIES THEY SERVE.

It is a pity that the amendment, which outlined the various parts of the jigsaw, was not taken on board. Perhaps the House will be able to return to this matter to ensure that an Garda Síochána is accountable at the lowest possible level to the communities it serves. It is important that all communities feel they can play as big a role as possible in ensuring they are policed properly. Not only should an Garda Síochána be responsive to their needs, but they should also be responsive to the needs of an Garda Síochána when required.

7:00 pm

Photo of Joe CostelloJoe Costello (Dublin Central, Labour)
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Deputy Ó Snodaigh has covered a broad spectrum of issues. His amendment No. 42 proposes that "the appointment of a Deputy Garda Commissioner and Assistant Garda Commissioner will be merit-based, and subject to a transparent public recruitment process" and that "the appointment of a Deputy Garda Commissioner and Assistant Garda Commissioner will be subject to ratification by Bord an Gharda Síochána". It is unfortunate that we will not have such a board.

In an earlier amendment, I proposed the establishment of a Garda authority, similar to the board proposed by Deputy Ó Snodaigh. Both of us favour the establishment of an oversight body that would ensure a level of accountability and transparency in all the functions of the Garda. Such a body would also be responsible for dealing with the force's promotional procedures. All these matters are inadequately addressed in the Bill before the House.

I wish to speak about one of the core lacunae or flaws in the legislation. The Minister has chosen to hold the reins of the Garda Síochána and the Garda Commissioner close to his chest. The mechanisms provided for in the Bill are not sufficiently transparent or comprehensive to satisfy us that we have fulfilled the requirement to ensure that what has happened in the past will not happen again.

Mr. Justice Morris has stated clearly that he is concerned about promotional matters. In his first report, he said that "the Tribunal regards with disquiet the promotion to senior ranks of persons who were unwilling or unable to give to their vocation the energy and aptitude that it demands". Mr. Justice Morris found that middle management members of the force — superintendents, inspectors and sergeants — in County Donegal were not conducting their duties with "energy and aptitude". There were people in the job who did not seem to have any commitment to it, nor any enthusiasm, energy or aptitude for it. This begs the question as to why they were in the job, how and why they were appointed and why they were left in it. Some of them have since retired and some are currently the subject of disciplinary action, but if the Morris tribunal had not been in place, those same people who allowed and supervised a conspiracy of criminality to be operated against vulnerable, innocent citizens to continue would still be there. What do we do in the legislation before us to redress that situation? We do nothing. The Minister has no new proposals to ensure that all promotions are transparent and independent and not merely at the behest of the Government.

If we continue in this manner, we are not doing ourselves any favours today in the manner in which the legislation is being put forward. I would like to hear the Minister go into some detail about a merit-based and transparent public recruitment process. I know he believes, and has stated, that he already has this in place and that we will have one of the best, most transparent, merit-based recruitment processes possible. However, there is no structure to ensure that, and it will remain in the gift of the Government to make all the senior appointments.

If we had put in place a Garda authority, one of its functions would have been to establish promotional procedures and ensure their implementation, and to ensure that recruitment took place in a transparent fashion. There is no doubt that the final ratification would come through the Government. However, there are currently officers in place who do not command the respect they should because of the use of the existing mechanism.

The issue of accountability is not addressed in the legislation because we do not have the structures to address it. The Minister puts the emphasis on the persons, the role of the Garda Commissioner, the Minister and the inspectorate. This is not a satisfactory structure to ensure transparency. I hardly need remind the Minister of the criticism by Mr. Justice Morris with regard to the Department of Justice, Equality and Law Reform, and the Minister, not knowing what was going on in the Garda Síochána. The Morris tribunal report arrived just a couple of weeks ago so we must take it that up to the present, the Minister, Ministers of State and the Department did not know what was going on in the Garda Síochána, that they simply take on trust whatever they are told. The Department is no wiser than the Minister, with the Garda Commissioner channelling information to the Minister, and there are no structures in place to check the validity or accuracy of what is being channelled.

The Morris tribunal report determined that this was the fatal flaw in the chain of command, that there was no oversight, from the gardaí on the ground to the superiors in Donegal supposedly exercising a supervisory role, to the Garda management in headquarters in the Phoenix Park who should have been checking on everything and should have known what was going on, to the Department and the Minister. All along, there was a line of communication, but none of validation. That was missing.

The Minister said that his line of validation will come through the inspectorate and the extra powers given to the Garda Commissioner. There is no hands-on structure there to allow oversight. An inspectorate will be hit and miss, and here and there. It will look at stations, it will be an audit mechanism, will perform different tasks given to it by the Minister and will report back to him. That is not the same as a transparent structure or one which will have the powers to ensure accountability and oversight.

We need to look at the Garda operational strategy, budgeting, administration, reporting, annual plans and reports. Who will do all that? Will the Commissioner do it? I am not sure. It is doubtful if the Minister will do it, and the Department will not do it. The only check on all that is the Committee of Public Accounts. It will look at a narrow area of operation, the accounting and auditing section, at value for money. It will not have the broad spectrum of activities of the Garda under the microscope. It will be able to look at Garda operations perhaps only once a year. The inspection will not take place on an ongoing basis. There is no ongoing oversight or administration.

Photo of Michael McDowellMichael McDowell (Dublin South East, Progressive Democrats)
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What about the Oireachtas Joint Committee on Justice, Equality, Defence and Women's Rights?

Photo of Joe CostelloJoe Costello (Dublin Central, Labour)
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That committee may or may not perform an inspection. We tried to get the Minister to insert an amendment to empower that committee with an oversight role but he refused to take it on board. Why should that committee not have a role? It may or may not perform a role.

Photo of Michael McDowellMichael McDowell (Dublin South East, Progressive Democrats)
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The Garda Commissioner must appear before committees of the House.

Photo of Joe CostelloJoe Costello (Dublin Central, Labour)
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Yes, if he is so requested. The legislation does not make it compulsory for the Garda Commissioner to appear. It puts no requirement on him to attend. We would expect the Commissioner to attend if and when requested, but the legislation does not give a specific role to the Oireachtas Joint Committee on Justice, Equality, Defence and Women's Rights in terms of an oversight function regarding the operation of the Commissioner, the Minister or the Department. I would like the Minster to come back on that issue. He might consider an amendment which would give the committee the power referred to.

The fatal flaw in the legislation is that nobody is responsible. Even if the committee had an oversight function, which it has in a general sense, it has so much else to do that it cannot have a day-to-day, week-to-week or month-to-month oversight function.

Photo of Michael McDowellMichael McDowell (Dublin South East, Progressive Democrats)
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That is why I also favour a security committee.

Photo of Joe CostelloJoe Costello (Dublin Central, Labour)
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A security committee does not exist though it might at some future time. Let us not talk of possibilities that may never be realised. In terms of oversight, I would love to see a specific role for the Oireachtas Joint Committee on Justice, Equality, Defence and Women's Rights. That would be helpful. However, there is no substitute for a structure or mechanism to monitor all the activities going on.

Deputy Ó Snodaigh emphasises in his amendment the need for a merit-based and transparent public recruitment process. Everybody recognises that need. The Minister must do a lot to convince us that the structure currently in operation with regard to Garda appointments above the rank of inspector is transparent and merit-based to an extent which commands public confidence. It is not, and it must be changed. The public must know that a proper structure is in place. I would like to ascertain what the Minister has in mind in that respect.

The role of the ombudsman arises in the context of transparent structures. I look forward to the operation of the new commission in terms of transparency and effectiveness, given all our reservations to date. However, it is difficult to believe anything could be less effective than the current complaints machinery.

The Minister has addressed a number of the issues in this regard but, ultimately, the Opposition is attempting to put the best and most effective structures, which will command respect, in place so we will not have to revisit the legislation in the autumn on the basis of it not working and that it was not thought out properly. I am not sure whether the ombudsman commission has the necessary powers because its ability to inspect Garda stations is a grey area. A number of stations can be inspected but others designated by the Minister will not be open to inspection.

That presents an interesting conundrum. No Garda station deals wholly with security. A number of stations are concerned with the security of the State and documents and computer files are stored in them. The Commissioner will advise the Minister regarding the designation of stations on the basis that it would not be desirable to have the commission leafing through documents in them because of security concerns. Advance notice will be given of the visit of a member of the ombudsman commission. Once a station receives such a designation, advance notice is automatically provided and, therefore, it will be impossible for the commission to conduct its business properly.

That presents a problem in terms of the powers of the commission. How many stations will be involved? Will the designation apply to part of the Garda station or aspects of the work engaged in by the station or will it apply to the entire station? What criteria will be used? What is "the security of the State"? Does it concern special branch, C3 files, matters relating to political or paramilitary activity or a combination? Limitations will be placed on the work of the commission. In which areas will it operate proactively without having to await a complaint? These issues relate to the transparency of the role of the ombudsman commission and the amendment is concerned with accountability, promotions and oversight and monitoring structures.

My other amendment relating to the Garda authority will not give rise to a charge on the Exchequer. It states, "The Minister may by regulations provide for the establishment of a body to be known as the Garda Síochána authority". That is not compulsory and an option will be provided. If it is only an option, why has the amendment been ruled out of order? The amendment under discussion presumes a Garda board will be in place, which will result in a cost to the State. There is a lack of logic about what is permissible and what is out of order. It would have been better if my more modest proposal had been used as the starting point. We could then have debated properly the other amendments, which lead from that proposal.

The Opposition considers that a Garda authority should be established. It will not tie the Minister of the day in the manner the Minister thinks, thereby leaving nobody accountable to the House. The authority can be established in such a way that the Minister would remain accountable to the Oireachtas. The other side of the coin is the Minister will have sole responsibility for the Garda, which will be unhealthy. It will be impossible for a Minister to keep an eye on everything that happens and it will also be impossible for the Department to do so because it has different functions nor would it be healthy for the Department to do so. However, nothing will be established in their place, which is the problem.

While the Minister points up the dangers to establishing an independent police authority, he has not proposed an effective body to replace it. The Minister has provided that the inspectorate and the Commissioner, through certain duties assigned to him or her, will take the place of such an authority but sufficient oversight capacity will not be provided. This will result in a mish mash down the line and the Garda not being subject to appropriate accountability or transparency. Neither will it be managed in an effective fashion on a day-to-day basis. A malaise could affect its operation in the future.

We may have to revisit the amendments to the section. The Minister's amendments address matters raised in the Morris tribunal reports. However, the reports are not the be all and end all of Garda reform. The Patten report will have a greater contribution to make to such reform while Senator Maurice Hayes made a major contribution in this regard in the past. Other incidents in the not too distant past have raised concern about the need for Garda reform. Not only has confidence in the Garda been eroded following a major scandal in Donegal, it also has been eroded by the failure to deal with gangland killings.

In those cases, people are operating with no chance of being prosecuted, convicted or imprisoned. In the past ten years, no more than two people have been convicted of gangland murders in any single year. In some years it was only one. When there are a dozen gangland murders and only one or two people are convicted for those crimes, it is not a high success rate. While it is notoriously difficult in international terms to achieve a high conviction rate in such cases, the low rate is worrying. People can virtually kill with impunity. Contract killers can be employed, and that is happening to a greater extent.

The accompanying problem of where the guns are originating is a cause of equal public concern. They are readily available.

Séamus Pattison (Carlow-Kilkenny, Labour)
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The Deputy appears to be making a Second Stage speech.

Photo of Joe CostelloJoe Costello (Dublin Central, Labour)
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I am about to conclude. The gardaí do not appear to be able to deal with the weapons issue. The other side of the problem is drugs. The drugs problem has expanded across the country.

There are many issues and community policing is a positive way of dealing with some of them. However, other areas of concern require a more structured response than is provided in this legislation. While we acknowledge the good provisions in the legislation, in a number of areas the Minister's response has been inadequate. It might be necessary to revisit the legislation. That is the reason the Minister should have taken on board some of the proposals we have put forward, including this one. It has been ruled out of order on the one hand and has been ruled in order on the other. Regardless of whether it is in order, it has enormous merit.

Photo of Gerard MurphyGerard Murphy (Cork North West, Fine Gael)
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The point at issue is whether any body is responsible for oversight of the Garda Síochána and its functions. The Minister said the justice committee has a function in that regard. This was discussed on Committee Stage, when the Minister discovered that the justice committee had slightly more powers than he had realised. The chairman, Deputy Ardagh, pointed out that the terms of reference of the committee and Standing Orders allow the committee to call the Garda Commissioner before it.

However, the justice committee has a heavy workload. It does valuable work, as was seen with its recent report on community policing, and there is a distinct possibility that it would be distracted and not do the oversight job comprehensively. For that reason the establishment of a security committee in this context is a necessity. The security committee could concentrate on the job, conduct the necessary oversight, examine the practical elements of the daily operation of the Garda Síochána and monitor the force carefully. If no other oversight body is to be provided, at least this would be of some assistance.

Photo of Dan BoyleDan Boyle (Cork South Central, Green Party)
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I support amendment No. 42 on the two grounds outlined by the proposer. Transparency in the appointment of the deputy Garda commissioner, assistant Garda commissioner and the Garda Commissioner is long overdue. History shows that only two Garda Commissioners have ever been dismissed from office. One of them subsequently got involved in politics. While those who are appointed to the office of Garda Commissioner have the ability to perform their role and to perform it in an objective manner, as was the case with judicial appointments made in the past, the impression persists that being on the right side of the fence is the prime criterion as to whether they are appointed at a particular time to that position. A transparent procedure must be put in place to prevent those perceptions continuing into the future.

There is a need for a body that would exercise that function and, indeed, other functions of accountability. Since being elected to this House in 2002 I have only once seen the Garda Commissioner appear before the justice committee. It was the previous Garda Commissioner, Mr. Byrne. I was asked to attend that meeting by the committee chairman to raise issues I had raised previously in the House when discussing justice legislation. I found the occasion most unsatisfactory. It was not an exercise in accountability. I considered it nothing less than an exercise in public relations on behalf of the then Commissioner and the Garda.

If there is to be true accountability and if it is to be exercised through a committee of this House, stronger powers will be required. Those powers will have to be exercised in the same way as in other jurisdictions. We do not come even close to exercising the type of committee powers that can be exercised in the United States, for example. Until we are prepared to make parallel changes in our committee system, the issue of accountability, even after this Bill is enacted, will continue to be as nebulous as it has been throughout the history of the State. In passing this Bill on those terms we will not have done a good day's work.

Photo of Jim O'KeeffeJim O'Keeffe (Cork South West, Fine Gael)
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The first issue I wish to comment on is how we select the top appointments in the Garda Síochána. Let us be blunt. Much of the criticism of the Garda Síochána is not concerned with the lower ranks but with management. The question is whether there is sufficient management expertise in the Garda Síochána. I am not pointing a finger at any individual at the top level of the Garda but at the general management approach. One must wonder how somebody who has come up through the police ranks would acquire the management skills required unless they have had the opportunity of acquiring those skills in modern management schools or outside the Garda Síochána.

We must confront the issue of how to ensure that middle and top management of the Garda will have the best management skills. This issue has been avoided. On Committee Stage I suggested bringing civilians with management skills into the top levels of the Garda Síochána. I highlighted the case of the Minister's former special adviser who has become the head of public relations with the PSNI. I understand she holds the position and status of assistant chief constable. Despite being a civilian she has that seniority and status. Will we follow the same precedent? That is not to suggest that we slavishly follow everything that is done in Northern Ireland.

In the early days of the Garda Síochána there was another precedent whereby people with a military background were brought into the force. I am not saying "yea" or "nay" to that practice. Management expertise is needed. Top people in the Garda Síochána might be given leave of absence for several years to enter management positions in the private sector to broaden their expertise and return with that into the force. We must be open to a new approach to management so that the best police force in the world about which I have spoken will be the best-managed police force in the world.

Deputy Gerard Murphy touched on a point I have frequently raised and will raise again possibly for the last time in the context of this Bill, namely, an Oireachtas security committee to provide oversight. I take the Minister's formal response on that issue, that he is not responsible for setting up committees. However, external oversight is necessary.

This committee should be outside the security loop of the Minister, the Department, the Garda headquarters and gardaí down the line. The Minister resolutely opposes a police authority and has argued his point on that. Whatever happens in the future we should put that external oversight in place through the Oireachtas. That is why I believe an Oireachtas security committee is necessary.

It may be said that the Garda Commissioner may come before the Oireachtas Joint Committee on Justice, Equality, Defence and Women's Rights but that committee is overloaded and could not cope with that responsibility. Alternatively, it may be argued that, under this new Bill, the Garda Commissioner will come before the Committee of Public Accounts as the Accounting Officer but that will be to deal only with accounts which is the role of that committee. I refer to operational matters, the type of issues on which, had there been oversight, we might have avoided many recent difficulties.

The Garda Síochána should be the best police force in the world with the best resources possible but it should know that to a degree it is under the additional microscope of an Oireachtas security committee. This committee should be fully resourced, similar to the Committee of Public Accounts, with an Opposition chairman to ensure that it remains outside the loop I have described. It often seems that the Government chairman of an Oireachtas committee is the mouthpiece of a Minister. I do not say this particularly of the Oireachtas Joint Committee on Justice, Equality, Defence and Women's Rights. The chairman of a security committee must be a member of the Opposition.

Can that security committee be set up as soon as the Bill is enacted? What needs to be done? I made my point and the Minister has agreed with me so it should not be left in limbo. Will a memorandum be sent to Government suggesting that it take the necessary steps in the House to put the arrangements in place?

I agree with Deputy Costello that within two years of the implementation of this Bill an independent policing commission, similar to the Patten Commission, should be established. The Government rejected the proposal last night. Nevertheless, it would be useful that when the Act is in place, everyone involved, from the Minister through to the Garda Síochána, is aware an independent commission would take place in two years. That would help to keep everyone alert and, in addition to the immediate oversight of the proposed Oireachtas security committee, help to ensure that the aims of this Bill would be achieved.

Photo of Finian McGrathFinian McGrath (Dublin North Central, Independent)
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I support amendment No. 42 which is a constructive addition to the debate on this Bill. In regard to subsection (2) and the appointment of the deputy and assistant Garda commissioners, it is important to appoint the right people to senior positions. The phrase "merit-based" is significant because there is an urgent need to give priority to the quality people already in the Garda Síochána who have proved to be effective officers. There should be no other method or procedure for appointments to the top level. Members of the public and gardaí sometimes feel there is no process to reward valuable members of the Garda Síochána.

A transparent recruitment process is necessary to ensure that everyone concerned understands the procedures involved in the process. An opportunity exists to reform the Garda Síochána and develop it as a modern police force that meets international standards. Recent cases have damaged this debate which some might feel is a reaction to those events. There should be a constant process of change, development and progress in organisations such as the police force. Amendment No. 42 deals positively with this issue.

Subsection (3) of the amendment, "The appointment of a Deputy Garda Commissioner and Assistant Garda Commissioner will be subject to ratification by Bord an Gharda Síochána", is also very constructive. The Minister should take on board the views of certain organisations, particularly in regard to the roles of the Minister and the Garda Commissioner. Some feel that the Bill runs the risk of over-centralising and politicising the Garda Síochána which would undermine its independence. The police should be and be seen to be of service to the public and not the tool of Government. It should be independent but also accountable as a servant of the State.

We must recognise the need to introduce changes and reforms, and improve the integrity and quality of the Garda Síochána. This amendment is part of that process because it adds a new dimension to the legislation. There are people within the force who have much to contribute, through merit and a strong work record. I worked with some of them both as a city councillor and a primary school teacher in the north inner city.

The greatest gap occurred in the 1980s at the time of the bad heroin epidemic in the north inner city when a group of young gardaí——

Photo of Rory O'HanlonRory O'Hanlon (Cavan-Monaghan, Ceann Comhairle)
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The Deputy is wandering well away from amendment No. 42.

Photo of Finian McGrathFinian McGrath (Dublin North Central, Independent)
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I will not wander too far. I wish to emphasise the message. Quality police officers working locally win the trust and support of communities, particularly in regard to serious issues. Subsection (3) of amendment No. 42 is part of the debate on bringing quality people into top management in the Garda Síochána.

In the recruitment process people must also accept that there are challenges for the new deputy and assistant Garda commissioners. I would like to see those people take up the challenges in a very positive and constructive way. I would also like to see those senior gardaí linking up with other police forces internationally and dealing with examples of good practice in policing. There are some examples internationally of quality police officers, and I know that some of that already happens at some level. However, I would like to see it develop further because of the recent international situation, particularly regarding the drugs trade, which has a strong international dimension.

Amendment No. 42 will improve the quality of life of the Garda Síochána and citizens as well as the service to the community. I urge all Deputies to support this important amendment.

Photo of Michael McDowellMichael McDowell (Dublin South East, Progressive Democrats)
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As I listened to the debate on this amendment, it became ever clearer that the underlying assumption in the amendment of the existence of some independent policing authority has not been thought through by those who proposed it in this House. I have never heard a coherent argument for it, although I have heard people come up with half-thought-out views on the subject.

On the Order of Business — I do not know whether the Ceann Comhairle was present — someone was giving out about the fact that he had tabled questions to the Minister for Health and Children and been told that they had been referred to the Health Service Executive for a response. There was an outraged squeak of horror from the Deputy, who realised that one of the difficulties of delegating an entire area of governmental activity to an agency other than the Minister is that one is suddenly confronted with a situation where the Minister can say that she is sorry but that there is a group of people known as the board of the HSE. There is a chief executive officer, Professor Brendan Drumm, and Deputies must address questions to the executive rather than to the Minister. They make the decisions, and the Minister gives them the money, directives and policy. Thereafter, it is up to them to come up with explanations.

The same emphatically applies to the question of policing. Deputy Finian McGrath, whose contribution I listened to very intently, put his finger on it, although not in a way with which I would agree, when he said that the police cannot be seen as a tool of the Government. I do not agree with that proposition at all. In our Constitution, there are three arms of State, the Legislature, the Executive and the Judiciary. The Executive arm of the State is most certainly responsible for its policing. It is responsible through this Parliament and its elected Members to the people. That is what the Constitution envisages.

It would be a very sad day if policing were carried out in this State in a way in which no one on these benches was personally and politically accountable to this Chamber, and the relationship between the Minister for Justice, Equality and Law Reform and the Garda was as close as that between the Minister for Communications, Marine and Natural Resources and the staff of "Morning Ireland" at RTE.

Photo of Joe CostelloJoe Costello (Dublin Central, Labour)
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What about the Morris tribunal? The Minister does not know what is going on in the Garda.

Photo of Michael McDowellMichael McDowell (Dublin South East, Progressive Democrats)
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One would ask what had happened yesterday in a specific programme——

Photo of Bernard DurkanBernard Durkan (Kildare North, Fine Gael)
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That is an unfortunate analogy.

Photo of Michael McDowellMichael McDowell (Dublin South East, Progressive Democrats)
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——and receive the stock answer in reply that it was a matter for the RTE authority and that one should not ask the Minister about it since he does not employ or manage those people who are independent and supposed to be discharging their functions separately from the Government. Deputies should not ask the Minister why some journalist, commentator or presenter is biased or being overpaid since that is a matter for the RTE authority. That is what happens when we establish bodies not subject to ministerial authority and accountability.

The fundamental intellectual flaw that the Members opposite have continually exhibited in this debate is a radical inability to distinguish between operational independence, which we all accord to the Garda Síochána — when its members carry out their duties, they are supposed to do it themselves — and accountability. The two are not mutually exclusive.

One can say to the Commissioner, his deputy and assistant commissioners and the entire pyramid of authority in the Garda Síochána down to the men and women who serve as gardaí that they are operationally independent as a force. The Minister will not tell them from day to day where they should deploy their forces, how they should enforce the speed limit, whether they should put people out on shifts at 3 a.m. or work three equal eight-hour shifts. One can say all those things by endorsing the principle of operational independence and saying to the Commissioner of the Garda Síochána that he is Accounting Officer and that he should take part in value-for-money discussions with the Committee of Public Accounts to justify what he is doing with the resources deployed in the force. One can say all those things but certainly one cannot say that the Garda Síochána should be an unaccountable force.

People keep arguing that if there were an independent police authority, the Garda would be accountable to it. However, let us consider what there is in Northern Ireland where the police authority consists of two groups of people married together. On the one hand, there are the great and the good selected by the Northern Ireland Office and, on the other, there is a group of politicians chosen on the d'Hondt principle. That amalgamated body runs the Police Service of Northern Ireland.

Imagine if we had that here, if the Government selected eight people and Members of the Oireachtas had some kind of mini-Seanad election and selected the remainder. What accountability would I have if such a group were running the Garda Síochána? What criticism could be made of me for the state of management or otherwise of the Garda Síochána if such a wonderful group were put in charge of our police? How would I be to blame if the rate of arrests or detections declined? What would the Deputy say to me as Minister for Justice, Equality and Law Reform about the state of the police if such a group existed and ran the Garda Síochána from day to day, demanding accountability from the Commissioner? It simply does not add up. Frankly, the more that I think about it, the more that one thing in this debate——

Photo of Aengus Ó SnodaighAengus Ó Snodaigh (Dublin South Central, Sinn Fein)
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On a point of order, the second contribution by the Minister should be limited to two minutes.

Photo of Michael McDowellMichael McDowell (Dublin South East, Progressive Democrats)
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This is my first contribution, so bad luck.

Photo of Rory O'HanlonRory O'Hanlon (Cavan-Monaghan, Ceann Comhairle)
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The Chair is at a disadvantage, since he was not in at the start of the debate, but according to my notes, it is the Minister's first contribution.

Photo of Aengus Ó SnodaighAengus Ó Snodaigh (Dublin South Central, Sinn Fein)
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It sounds like his third.

Photo of Michael McDowellMichael McDowell (Dublin South East, Progressive Democrats)
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The one thing that is becoming ever clearer to me in the course of this debate relates to a question that I have asked myself for the last few days. How come, when it was one of the programme for Government commitments of the 1982 to 1987 Fine Gael-Labour Government to establish an independent police authority, that did not happen during those five years when very eminent members of Fine Gael such as Deputy Noonan and Alan Dukes served as Minister for Justice? Why did they not make progress on this proposal at all?

Photo of Dan BoyleDan Boyle (Cork South Central, Green Party)
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Is that why the Minister left? He was a member at the time.

Photo of Michael McDowellMichael McDowell (Dublin South East, Progressive Democrats)
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Perhaps there was a reticence on the part of Fine Gael to follow up such a brilliant idea from Labour. Why, when Labour got into Government again in 1992 and had another five years — and a total of ten years in a 20-year period — was that proposal never advanced one jot by any of those who talked about it during election time?

Photo of Joe CostelloJoe Costello (Dublin Central, Labour)
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We will never beat the Department.

Photo of Bernard DurkanBernard Durkan (Kildare North, Fine Gael)
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Will the Minister give way?

Photo of Michael McDowellMichael McDowell (Dublin South East, Progressive Democrats)
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There is a very simple answer, which has become clear to me in the course of this debate. It is a bad and rotten idea.

Photo of Bernard DurkanBernard Durkan (Kildare North, Fine Gael)
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Will the Minister give way?

Photo of Michael McDowellMichael McDowell (Dublin South East, Progressive Democrats)
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The real problem is that if it were introduced, the Opposition in this House would have no accountability from the Minister for Justice, Equality and Law Reform of the day at all. One would have the bland old response that the crime or homicide rate was rising and that we really must do something about it, such as sending a letter to the independent police authority and telling it to pull its socks up. That is the kind of politics for which the Deputies opposite are collectively arguing. It is the most threadbare policy that I have ever heard articulated in this House. The more I have heard people suggesting it and the stronger the condemnation of the Minister, Deputy O'Donoghue, and I in regard to recent events, it has become crystal clear that this is all guff and there is not a case for an independent police authority.

Photo of Joe CostelloJoe Costello (Dublin Central, Labour)
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We know the Minister wants to run the show.

Photo of Bernard DurkanBernard Durkan (Kildare North, Fine Gael)
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Will the Minister give way?

Photo of Michael McDowellMichael McDowell (Dublin South East, Progressive Democrats)
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Opposition Members want the exact opposite. It is their desire that the Minister of the day should be accountable to the House for the state of policing, law and order and law enforcement issues, in other words, the entire criminal justice system.

Photo of Bernard DurkanBernard Durkan (Kildare North, Fine Gael)
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Will the Minister give way?

Photo of Michael McDowellMichael McDowell (Dublin South East, Progressive Democrats)
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I will not give away.

Photo of Paul KehoePaul Kehoe (Wexford, Fine Gael)
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The Minister is afraid of Deputy Durkan.

Photo of Michael McDowellMichael McDowell (Dublin South East, Progressive Democrats)
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Opposition Members have had plenty of time to discuss this issue. They do not want, under the circumstances, to give up the notion of ministerial accountability, but they wish to divest the Minister of any real authority in the matter and to give it to a group of the great and the good who would carry out this function.

That is the real problem with Deputy Ó Snodaigh's amendment No. 42. It is predicated on the establishment of bord an Gharda Síochána to act as an independent police authority.

Photo of Aengus Ó SnodaighAengus Ó Snodaigh (Dublin South Central, Sinn Fein)
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I explained this amendment in full but the Minister was not in the House to hear it.

Photo of Michael McDowellMichael McDowell (Dublin South East, Progressive Democrats)
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Throughout the debate on this Bill, both in public and private, there has been a radical failure on the part of those who support an independent police authority to come up with any view of how that police authority would relate to this House and to the notion of ministerial accountability.

The second aspect of Deputy Ó Snodaigh's proposal is that the appointment of deputy commissioners and assistant commissioners should be merit-based and subject to a publicly transparent tendering process. I am the first Minister for Justice, Equality and Law Reform to bring before this House a new independent promotions system for every rank in the Garda Síochána. I have been struck by the constant barrage from those who talk about patronage, unfair promotion and so on in the Garda Síochána. There are two species of this line of argument. The first is the contention that it is all based on party politics. It has been argued in this House that the Garda is politically divided and that its internal management is somehow imbued with party politics. The second position is perhaps slightly more credible in its contention that there are internal Garda politics involved in the promotion system and that this is obnoxious and reprehensible.

Photo of Finian McGrathFinian McGrath (Dublin North Central, Independent)
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Both of these arguments are a reality.

Photo of Michael McDowellMichael McDowell (Dublin South East, Progressive Democrats)
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It is most urgent that the first of these positions be knocked on the head. I have been Minister for Justice, Equality and Law Reform for three years. During that time, I have never in any shape or form interfered or made representation or communication, whether formal, informal, by a nod or wink or any other means, to any member of the Garda Síochána in respect of any promotion that has ever taken place in the force.

Photo of Joe CostelloJoe Costello (Dublin Central, Labour)
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We would not expect otherwise.

Photo of Michael McDowellMichael McDowell (Dublin South East, Progressive Democrats)
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The same applies in regard to the transfer of any garda from one location to another. Many Deputies have approached me during votes offering pieces of paper on which are written the names of gardaí who wish to be transferred. Those pieces of paper stay in my pocket until I relegate them to the wastepaper bin. I have never interfered in this way.

Photo of Bernard DurkanBernard Durkan (Kildare North, Fine Gael)
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I hope the Minister informed the Deputies concerned that he had done so.

Photo of Jim O'KeeffeJim O'Keeffe (Cork South West, Fine Gael)
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Does the Minister mean to contrast his actions in this regard with that of his predecessors?

Photo of Michael McDowellMichael McDowell (Dublin South East, Progressive Democrats)
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I will never partake in such interference. That is the situation.

Photo of Jim O'KeeffeJim O'Keeffe (Cork South West, Fine Gael)
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Is the Minister appalled by what has gone before in this regard?

Photo of Rory O'HanlonRory O'Hanlon (Cavan-Monaghan, Ceann Comhairle)
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The Minister should be allowed to continue without interruption.

Photo of Michael McDowellMichael McDowell (Dublin South East, Progressive Democrats)
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I am entirely unaware of the party political allegiance of any of the senior gardaí with whom I have ever done business. They have never let me know, by any means, anything by which I could make such a judgment.

The other form of reprehensible favouritism to which Members have referred is that relating to some form of internal politics whereby members of a particular Garda division may favour each other and crowd up the promotions ladder in this way. This Bill puts in place for the first time ever — I say this to all the Deputies who have been in office and have not delivered — a system under which there will be an independent promotion board of which the majority of members will not be gardaí and will be selected from panels appointed not by the Commissioner but by the Government.

Photo of Bernard DurkanBernard Durkan (Kildare North, Fine Gael)
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I knew there would be a sting in it somewhere.

Photo of Michael McDowellMichael McDowell (Dublin South East, Progressive Democrats)
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Who would Deputies argue should appoint the panels? Would they like the NGOs to do so? We live in a constitutional world——

Photo of Dan BoyleDan Boyle (Cork South Central, Green Party)
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Will there be members of the Progressive Democrats Party on these boards?

Photo of Rory O'HanlonRory O'Hanlon (Cavan-Monaghan, Ceann Comhairle)
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The Minister should be allowed to continue without interruption.

Photo of Michael McDowellMichael McDowell (Dublin South East, Progressive Democrats)
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We live in a constitutional world where it is the duty of the Government to govern.

Photo of Pádraic McCormackPádraic McCormack (Galway West, Fine Gael)
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I wish it would do so.

Photo of Michael McDowellMichael McDowell (Dublin South East, Progressive Democrats)
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The Government appoints the members of the Human Rights Commission and of the Judiciary, for example. I am satisfied that it should also appoint the panels from which independent outsiders will be asked to carry out these functions in regard to the Garda Síochána.

Photo of Bernard DurkanBernard Durkan (Kildare North, Fine Gael)
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The Minister is beginning to scare me.

Photo of Michael McDowellMichael McDowell (Dublin South East, Progressive Democrats)
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It has been stated repeatedly that because the Garda Commissioner and the senior Garda ranks hold office from the Government, they are somehow politicised. This is totally false. The only sense in which it is true that superintendent or chief superintendents are appointed by the Government is that they are appointed at the end of a merit-based process and that the Government invariably accepts the name of the person who is at the top of the list.

Photo of Pádraic McCormackPádraic McCormack (Galway West, Fine Gael)
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Is that system working?

Photo of Michael McDowellMichael McDowell (Dublin South East, Progressive Democrats)
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That has always happened in my experience both as Attorney General and as Minister for Justice, Equality and Law Reform. When people are promoted on that basis, the pertinent point about the fact that they hold office from the Government is that this gives them strength in their role in that they cannot be sidelined, pushed aside or demoted because they hold their commission, like Army officers, from the Government. They are people who have a direct relationship with the Government.

The selection of a Commissioner, as with the appointment under the TLAC system of a Secretary General of a Department, must ultimately fall to the Government. It would be an abdication of the responsibility of Government to say that some other group of the great and good should say who the Commissioner or his or her deputies should be. That would be a hopeless abdication of the function of Government. I strongly believe we should stick closely to the position that the Minister for Justice, Equality and Law Reform, as the member of the Government with special responsibility in this area, is accountable to this House for the conduct of the Garda Síochána. We should not adopt this woolly-minded approach which argues there is some type of middle way whereby a group of people can perform the same function in regard to the Garda Síochána as the RTE authority does for RTE. That is a mistaken view of democracy and is wholly misconceived.

Photo of Joe CostelloJoe Costello (Dublin Central, Labour)
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On a point of order, will the Minister accept that what Mr. Justice Morris said in his first report——

Photo of Rory O'HanlonRory O'Hanlon (Cavan-Monaghan, Ceann Comhairle)
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That is not a point of order.

Photo of Aengus Ó SnodaighAengus Ó Snodaigh (Dublin South Central, Sinn Fein)
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The Minister has given way on the point of order.

Photo of Joe CostelloJoe Costello (Dublin Central, Labour)
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The Minister has given way.

Photo of Michael McDowellMichael McDowell (Dublin South East, Progressive Democrats)
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I should not give way on Report Stage.

Photo of Joe CostelloJoe Costello (Dublin Central, Labour)
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Will he not accept that what Mr. Justice Morris said was that the Department of Justice, Equality and Law Reform is now utterly isolated from Garda headquarters——

Photo of Michael McDowellMichael McDowell (Dublin South East, Progressive Democrats)
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I accept that point. I am in total agreement on this.

Photo of Joe CostelloJoe Costello (Dublin Central, Labour)
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——and that the Minister is obliged to take everything on trust?

Photo of Michael McDowellMichael McDowell (Dublin South East, Progressive Democrats)
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That is exactly the point I am making.

Photo of Joe CostelloJoe Costello (Dublin Central, Labour)
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Mr. Justice Morris said the absence——

Photo of Rory O'HanlonRory O'Hanlon (Cavan-Monaghan, Ceann Comhairle)
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The Deputy has one minute to make a point of order and that time is now up.

Photo of Bernard DurkanBernard Durkan (Kildare North, Fine Gael)
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May I make a similar point of order?

Photo of Rory O'HanlonRory O'Hanlon (Cavan-Monaghan, Ceann Comhairle)
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No.

Photo of Michael McDowellMichael McDowell (Dublin South East, Progressive Democrats)
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I take the Deputy's point and make this point by way of reply. I agree the Department of Justice, Equality and Law Reform had become isolated and was effectively operating on trust and that——

Photo of Joe CostelloJoe Costello (Dublin Central, Labour)
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Mr. Justice Morris went on to say——

Photo of Michael McDowellMichael McDowell (Dublin South East, Progressive Democrats)
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May I finish?

Photo of Joe CostelloJoe Costello (Dublin Central, Labour)
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I ask the Minister to listen for a moment. Mr. Justice Morris went on to say that it was because of the absence of structures——

Photo of Rory O'HanlonRory O'Hanlon (Cavan-Monaghan, Ceann Comhairle)
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Deputy Costello should allow the Minister to respond without interruption.

8:00 pm

Photo of Michael McDowellMichael McDowell (Dublin South East, Progressive Democrats)
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I fully accept that point. If the Deputy looks at this Bill, for the first time the structures are there. The structures are being put in place for the right to require information and, in certain circumstances through the Secretary General of the Department, to require the production of documents.

Photo of Bernard DurkanBernard Durkan (Kildare North, Fine Gael)
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They were there all the time.

Photo of Rory O'HanlonRory O'Hanlon (Cavan-Monaghan, Ceann Comhairle)
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I ask the Minister to conclude because, as it is now 8 o'clock, I am obliged to put the following question in accordance with an order of the Dáil of this day: "That the amendments set down by the Minister for Justice, Equality and Law Reform and not disposed of are hereby made to the Bill, Fourth Stage is hereby completed and the Bill is hereby passed." Is that agreed?

Photo of Jim O'KeeffeJim O'Keeffe (Cork South West, Fine Gael)
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Certainly not. It is a disgrace.

Question put.

The Dail Divided:

For the motion: 58 (Michael Ahern, Noel Ahern, Seán Ardagh, Niall Blaney, Johnny Brady, Martin Brady, Séamus Brennan, John Browne, Joe Callanan, Pat Carey, John Carty, John Cregan, John Curran, Tony Dempsey, John Dennehy, John Ellis, Dermot Fitzpatrick, Seán Fleming, Pat Gallagher, Jim Glennon, Noel Grealish, Mary Hanafin, Seán Haughey, Máire Hoctor, Cecilia Keaveney, Billy Kelleher, Peter Kelly, Tony Killeen, Séamus Kirk, Tom Kitt, Brian Lenihan Jnr, Conor Lenihan, Michael McDowell, Tom McEllistrim, John McGuinness, John Moloney, Donal Moynihan, Michael Moynihan, Michael Mulcahy, Éamon Ó Cuív, Seán Ó Fearghaíl, Charlie O'Connor, Liz O'Donnell, Noel O'Flynn, Batt O'Keeffe, Fiona O'Malley, Tim O'Malley, Tom Parlon, Peter Power, Seán Power, Mae Sexton, Brendan Smith, Michael Smith, Noel Treacy, Dan Wallace, Mary Wallace, Ollie Wilkinson, Michael Woods)

Against the motion: 41 (Dan Boyle, Tommy Broughan, Paul Connaughton, Joe Costello, Seymour Crawford, Seán Crowe, Ciarán Cuffe, John Deasy, Jimmy Deenihan, Bernard Durkan, Martin Ferris, Eamon Gilmore, Paul Gogarty, Michael D Higgins, Brendan Howlin, Paul Kehoe, Pádraic McCormack, Finian McGrath, Paul McGrath, Paddy McHugh, Catherine Murphy, Gerard Murphy, Denis Naughten, Dan Neville, Aengus Ó Snodaigh, Fergus O'Dowd, Jim O'Keeffe, Brian O'Shea, Séamus Pattison, Willie Penrose, John Perry, Pat Rabbitte, Michael Ring, Eamon Ryan, Seán Ryan, Joe Sherlock, Róisín Shortall, Emmet Stagg, David Stanton, Mary Upton, Jack Wall)

Tellers: Tá, Deputies Kitt and Kelleher; Níl, Deputies Kehoe and Stagg.

Question declared carried

Photo of Rory O'HanlonRory O'Hanlon (Cavan-Monaghan, Ceann Comhairle)
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As the Bill is considered by virtue of Article 2.2.2° of the Constitution to be a Bill initiated in the Dáil, it will be sent to the Seanad.

Photo of Aengus Ó SnodaighAengus Ó Snodaigh (Dublin South Central, Sinn Fein)
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I propose that the Bill not be sent to the Seanad but that it be recommitted, the reason being that many of the amendments which were put by the Minister——

Photo of Rory O'HanlonRory O'Hanlon (Cavan-Monaghan, Ceann Comhairle)
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The Deputy should hear the Chair. I read out that, as the Bill is considered by virtue of Article 2.2.2° of the Constitution to be a Bill initiated in the Dáil, it will be sent to the Seanad. I believe Standing Order 119 covers that. The Deputy cannot oppose it being sent to the Seanad.