Niall Collins (Limerick, Fianna Fail)
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1. To ask the Minister for Justice and Equality the timeframe for the completion of the Garda Síochána Ombudsman Commission investigation into allegations by Garda whistleblowers regarding the administration of penalty points; and if he will make a statement on the matter. [5571/14]

Pádraig Mac Lochlainn (Donegal North East, Sinn Fein)
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2. To ask the Minister for Justice and Equality if he will ensure that the Garda Síochána Ombudsman Commission has access to the PULSE system during the investigation it initiated last week into the administration of fixed-charge penalties. [5629/14]

Mick Wallace (Wexford, Independent)
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3. To ask the Minister for Justice and Equality the precise circumstances which led him to request the Garda Síochána Ombudsman Commission to commence an investigation under section 102 of the Garda Síochána Act 2005; the reason he did not choose to initiate a wider investigation, under section 106, of policies, practices and procedures; the reason he considered the matter to have become one of public interest; if he consulted with the Garda Commissioner when choosing the relevant legislative provision under which the investigation would be conducted; and if he will make a statement on the matter. [5582/14]

Niall Collins (Limerick, Fianna Fail)
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Concerns about the administration of the penalty points system have been raised in the Oireachtas since the publication of the O'Mahoney report. The matter has been discussed by the Joint Committee on Justice, Defence and Equality, the Joint Committee on Public Service Oversight and Petitions and the Committee of Public Accounts. In the absence of its being conclusively dealt with, public confidence in the entire system will be undermined, if that has not already happened. Will the Minister give a timeframe for completion of the investigation into the matter by the Garda Síochána Ombudsman Commission? In addition, will he outline why he did not refer the issue to the ombudsman commission in the first instance?

Alan Shatter (Dublin South, Fine Gael)
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I propose to take Questions Nos. 1 to 3, inclusive, together.

I begin by apologising to Deputies if my voice is not very clear. I seem to have some type of bug, but I will try my best.

Before giving my reply to these questions, I take the opportunity to pay tribute to the work done by An Garda Síochána, the Defence Forces and Civil Defence in recent days in helping people affected by flooding in various locations throughout the State. Extraordinary work is being done and we are seeing great voluntarism on the part of members of Civil Defence and great commitment by An Garda Síochána and the Permanent Defence Force. That support for communities is very welcome and will continue to be in the coming days in the context of the dreadful weather conditions we are experiencing. Wearing both of my caps as Minister for Justice and Equality and Minister for Defence, I thank all those involved in the relief efforts, including those engaged in planning in advance of the severe weather.

Last week I referred allegations by Sergeant Maurice McCabe and former garda John Wilson of multiple incidents of wrongful cancellation by members of the Garda Síochána of fixed-charge notices to the Garda Síochána Ombudsman Commission. I am giving to the ombudsman commission all of the documentation in the possession of my Department relevant to these matters and I have requested the Committee of Public Accounts to do the same. I made this referral under section 102 of the Garda Síochána Act 2005 which permits me to "request the Garda Ombudsman Commission to investigate any matter that appears to the Minister to indicate that a member of the Garda Síochána may have (a) committed an offence, or (b) behaved in a manner that would justify disciplinary proceedings" and where I consider it desirable in the public interest to do so. This is the dual test for a referral under section 102 of the Act. The Garda Síochána Ombudsman Commission can, in accordance with that section and on its own initiative, investigate any matter by reference to the same dual test. It was open to the commission to engage in this matter prior to my referral had it sought to do so.

The ombudsman commissioners, during their appearance before the Joint Committee on Public Service Oversight and Petitions in July 2013, referred to a recent letter received by them from that committee and furnishing, for their consideration, a copy of the O'Mahoney report and accompanying report from the Garda professional standards unit. The commissioners noted that I, as Minister for Justice and Equality, had referred this matter to the Joint Committee on Justice, Defence and Equality and the Garda Inspectorate. They stated they had decided against opening an investigation but that this decision was open-ended and their position in the matter was reserved.

In circumstances where, notwithstanding a detailed Garda investigation into the allegations, continuing and additional allegations had been made and where An Garda Síochána, in the context of discussions at the Committee of Public Accounts, was being drawn into a matter of political controversy, I concluded that, in the public interest, it was appropriate to refer the matter to the Garda Síochána Ombudsman Commission. I did so on 28 January 2014. The timeframe for this investigation is a matter for the ombudsman commission which must be allowed the time and space to conduct a thorough investigation into all of the allegations and the circumstances in which they were made and pursued. The commission has made clear its expectation of full co-operation by all relevant parties with the investigation and the Garda Commissioner has given an assurance in respect of An Garda Síochána.

On the question of access by the ombudsman commission to the PULSE system, new protocols were agreed to last year between the Garda Commissioner and the chairperson of the Garda ombudsman commission. These revised protocols provide that the commission has access to the PULSE system through the two Garda superintendents working on secondment with the commission. In this context, under the 2005 Act, a member of An Garda Síochána, during a period of temporary service with the ombudsman commission, is not subject to the direction or control of the Garda Commissioner. However, notwithstanding the above and especially in respect of this investigation, where information on the PULSE system - how it is recorded and the detail of the information - is of central relevance, the Garda Commissioner and I are agreed that the ombudsman commission will have direct access to the system, without the need to go through the intermediary of a seconded member of An Garda Síochána. In the future, that will be the case both for this and any other investigation in which the Garda Síochána Ombudsman Commission is engaged. The revised protocols will be amended accordingly and arrangements made to put in place the necessary technical infrastructure and training required to facilitate this access.

The possibility has been raised of an alternative referral to the Garda Síochána Ombudsman Commission under section 106 of the 2005 Act. The purpose of a section 106 referral is for an examination by the commission of Garda practice, policy or procedure for the purpose of preventing complaints arising. There are two points to make. First, a section 106 referral is for an examination of systems, not individual allegations or incidents. Second, it must be for the purpose of preventing complaints which, under the Act, means complaints by members of the public who are directly affected by or who witness Garda conduct, rather than allegations by a member of the force. Clearly, whatever misgivings there may be about cancellations of fixed-charge notices, complaints will not be made by the members of the public who benefited from these cancellations.

It is clear, therefore, that a referral under section 102 of the 2005 Act, rather than under section 106, is the only way in which these allegations can be investigated.

Niall Collins (Limerick, Fianna Fail)
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The Minister outlined why he has now decided to refer it to the Garda Síochána Ombudsman Commission, GSOC. The Oireachtas Committee on Justice, Defence and Equality was united in its view that the matter should have been referred much sooner. Be that as it may, we have had a number of public utterances from current and former members of GSOC about some of the constraints and limits of powers afforded to them under the 2005 Act. It is important that this Act is revisited as soon as possible. The Minister mentioned access to the PULSE system. There has to be complete and unfettered access to PULSE.

Does the Minister agree that the Garda Commissioner in his role as chief of police should be subject to scrutiny by GSOC? In Northern Ireland and the UK, the heads of MI5 and MI6 are subject to scrutiny. Can the Minister confirm whether the Act will be changed to allow the referral of complaints by serving members of An Garda Síochána directly to GSOC? Can he also comment on the role of the confidential recipient? I think it has been proven conclusively that this role is not fit for purpose or up to standard.

Alan Shatter (Dublin South, Fine Gael)
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I remind the Deputy that he is a member of the Oireachtas Joint Committee on Justice, Defence and Equality. The two reports to which I referred were referred to that committee and it was open to that committee to hold hearings, call in An Garda Síochána and raise any questions it sought to raise arising out of those reports with other individuals. What the committee did was send the matter to the Oireachtas Committee on Public Service Oversight and Petitions. The Deputy is aware of that. It was my understanding that it was passed on to the committee of which Deputy Wallace is a member. This committee questioned GSOC about the matter and the response it got was the one I referenced. It did not go any further with that committee either.

I intend, as I announced, to bring forward new legislation to amend the 2005 Act. We have been conducting a review of this Act for the past nine months in terms of how matters work and where difficulties arise. The confidential recipient was a creature created by my predecessor in 2007 for serving members of the gardaí to make complaints of alleged misconduct that would effectively be furnished to An Garda Síochána itself to investigate. Time has proved that this is a defective procedure. It is my intention in the context of a series of amendments to address other issues raised by the Deputy that need to be addressed with regard to GSOC to confer on it a remit to deal with serious allegations of misconduct made by serving members of the force. Following the enactment of the amending Bill, I do not envisage that the office of confidential recipient will continue.

Pádraig Mac Lochlainn (Donegal North East, Sinn Fein)
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The Minister has been critical of members of Committee of Public Accounts and has said that he referred the matter to GSOC in the public interest due to the direction in which it was going. He now says that the Committee on Justice, Defence and Equality should have dealt with it. That committee and the Committee on Public Service Oversight and Petitions were both of the view that GSOC was the best place to investigate this because, unfortunately, committees cannot make adverse findings of fact against individuals. That was the people's decision in a referendum. We felt that the only independent place to have a proper full investigation with the proper expertise was GSOC. Unfortunately, both committees were unsuccessful because GSOC said it could not investigate it because it came from a serving member of An Garda Síochána. That is for the Dáil record.

Over the past year, we have all have been dealing with the lack of co-operation on the part of senior members of An Garda Síochána regarding GSOC. That has been heavily criticised but is now moving in the right direction. There are proper guidelines with regard to the penalty points issue so the public can look at this debacle and say that things are improving. However, on the back of all this, we need fundamental change in terms of the powers of the Garda Ombudsman and the independence of An Garda Síochána. It is really important that we send out the message that the issues around penalty points and co-operation with GSOC do not affect the vast majority of serving members of An Garda Síochána. They have done no wrong and there is no question mark over what they do. The issues relate to senior management and some senior officers regarding penalty points. That message needs to go out. This is not a crisis for An Garda Síochána. It is a crisis for the management and structures of An Garda Síochána.

Alan Shatter (Dublin South, Fine Gael)
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I have the transcript of what took place when the Garda Ombudsman appeared before the Committee on Public Service Oversight and Petitions. In response to a question raised, Carmel Foley of the GSOC addressed the matter and made references that correspond with what I said. She said that they were conscious that the whistleblower was a serving Garda and, therefore, they could not under the Act deem a complaint from him admissible. Of course they could not, and that was, unfortunately, the position with regard to the 2005 legislation and the creation of the confidential recipient. The legislation removed complaints from serving members of An Garda Síochána from the remit of GSOC and the 2007 provision sought to provide an alternative mechanism. I did not want to jump to conclusions about this at an early stage as Minister but I think it has been proved that the confidential recipient system does not work. It is unfair to those who raise issues of complaint and to the gardaí themselves because where the Garda fully and properly investigates a matter it is still open to question. I said all along that in the context of the fixed charge ticket issue, there was a need to tighten up on procedures and to ensure that the practice that was supposed to be followed was followed and that the decisions ultimately made even when the practice was appropriate were justified. I described some of those decisions as exotic, and deliberately so, because I would question whether proper procedures had been followed.

In the context of dealing with this overall issue, a legislative change is of importance, so that where serious allegations are made by serving members of An Garda Síochána, the GSOC can investigate them, there is no issue as to the independence of the investigation and the matter is dealt with once and for all. In the context of the issue we are dealing with, a range of allegations were investigated by Assistant Commissioner John O'Mahony which were referred to the Committee on Justice, Defence and Equality and the Garda Inspectorate. Since then, a series of additional allegations have been made. These are rolling, never-ending allegations, which is why it is appropriate that, as Deputy Collins said, we bring this matter to a conclusion where no further questions arise. That is why it was appropriate to refer it to the GSOC. I will come back to the issue of members of the Committee of Public Accounts.

Seán Barrett (Dún Laoghaire, Ceann Comhairle)
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I ask Members to watch the clock. That is what it is there for.

Mick Wallace (Wexford, Independent)
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Despite the Minister's protestations to the contrary, if he was serious about investigating the penalty points issue he would have introduced section 106, because it would have allowed for a wider examination of the practices, policies and procedures of An Garda Síochána, which is necessary. Unfortunately, the GSOC's hands are tied unless the Minister introduces section 106. This legislative deficiency in our policing oversight mechanism was severely criticised by UN rapporteur Margaret Sekaggya in her report to the Government last March. The Minister recently refused our request in the Dáil to reconsider the GSOC's request for permission to investigate under section 106 issues surrounding Corrib and the delivery of a large amount of alcohol to Belmullet Garda station. We need a reassessment of the limited GSOC referral currently proposed; immediate publication of broad terms of reference focusing on whistleblowers' allegations and not just whistleblowers themselves, which seems to be the slant taken; and reform of the legislative structures of Garda accountability.

There is also a need to address the over-politicised relationship that exists between the Minister and the Garda Commissioner. That relationship is not healthy for our police force. An independent police commission must be established and must carry out a root-and-branch review of the Garda Síochána for the first time in its history.

Alan Shatter (Dublin South, Fine Gael)
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Let us deal with a few matters. Deputy Wallace obviously read from a pre-prepared note and chose not to listen to what I said earlier.

Mick Wallace (Wexford, Independent)
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I did listen.

Alan Shatter (Dublin South, Fine Gael)
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I would not expect him to conduct himself any differently from normal in respect of these issues. As already stated, during the past nine months we have been conducting a review of the Garda Síochána Act 2005. I also stated that we will be bringing forward amendments in order to address matters with which the Garda Ombudsman Commission has been dealing in order to address some difficulties with and anomalies in that legislation. I explained to Deputy Wallace why section 106 is not the appropriate vehicle for a referral. Obviously, he paid no regard to what I had to say on that matter. The Deputy is also ignoring the fact that this report was referred to the Garda Inspectorate, the role of which is to examine the procedures and approaches taken by An Garda Síochána with regard to fulfilling its obligations in addressing and deciding how best to deal with matters. I expect to receive the report of the Garda Inspectorate shortly, which might provide further enlightenment and insight in the context of any additional changes to be made.

As Deputies on all sides have acknowledged, procedures have been tightened up in the aftermath of the report of Assistant Commissioner O'Mahony. At the end of August last year, the Garda Commissioner issued new directions to members of the force to ensure the prescribed procedures will be fully and properly complied with and that an audit will be conducted to ensure that this occurs. I am sorry that Deputy Wallace does not choose to accept that matters are being properly addressed. This seems to be a single-issue obsession of his.

Mick Wallace (Wexford, Independent)
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The matters in question have not been properly addressed for two years.

Alan Shatter (Dublin South, Fine Gael)
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In fairness to them, Deputies Niall Collins and Mac Lochlainn-----

Seán Barrett (Dún Laoghaire, Ceann Comhairle)
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We are over time.

Alan Shatter (Dublin South, Fine Gael)
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-----acknowledge the very important and substantial work done by members of the force. I wish to congratulate the force on very important arrests that took place in the past 24 hours.

Clare Daly (Dublin North, Socialist Party)
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Oh God.

Alan Shatter (Dublin South, Fine Gael)
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I do not want to say anything further about them but they are the subject of reports in today's newspapers.

Clare Daly (Dublin North, Socialist Party)
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Stick to the subject.

Alan Shatter (Dublin South, Fine Gael)
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The arrests in question relate to individuals who, it is alleged, committed a number burglaries across the country. Perhaps the Deputy might, for once, acknowledge-----

Clare Daly (Dublin North, Socialist Party)
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Perhaps the Minister might, for once, answer the question.

Alan Shatter (Dublin South, Fine Gael)
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-----that, regardless of procedural and other difficulties that arose on this issue-----

Mick Wallace (Wexford, Independent)
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The Minister is not answering my question.

Alan Shatter (Dublin South, Fine Gael)
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-----we have a police force-----

Seán Barrett (Dún Laoghaire, Ceann Comhairle)
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The Minister is over time. Will he please adhere to the rules?

Alan Shatter (Dublin South, Fine Gael)
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-----of which we can be proud. The members of that force are doing their duty and in the past 24 hours many of them have been out in the floods helping to ensure the safety of members of the public.

Seán Barrett (Dún Laoghaire, Ceann Comhairle)
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I ask the Minister and Members to adhere to the clock, that is what it is there for. We have run out of time on these questions and I must move on.

Pádraig Mac Lochlainn (Donegal North East, Sinn Fein)
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I request that an exception be made.

Seán Barrett (Dún Laoghaire, Ceann Comhairle)
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I am sorry-----

Niall Collins (Limerick, Fianna Fail)
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This is a very important issue.

Seán Barrett (Dún Laoghaire, Ceann Comhairle)
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-----but a time limit applies.

Pádraig Mac Lochlainn (Donegal North East, Sinn Fein)
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I am sure all the Members present would agree to an extension of the time.

Seán Barrett (Dún Laoghaire, Ceann Comhairle)
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We are obliged to adhere to the rules. However, I will take a very quick supplementary from each Deputy.

Niall Collins (Limerick, Fianna Fail)
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I thank the Ceann Comhairle for that. I may not have heard his initial reply clearly or correctly so will the Minister provide confirmation in respect of three issues for me? Will the Garda Commissioner come under the remit of the Garda Ombudsman Commission in the aftermath of the proposed changes? Will the legislation be amended in order to allow serving members of An Garda Síochána to refer complaints directly to the Garda Ombudsman Commission? Will the Minister be amending the position in respect of section 106 procedure and practices?

Pádraig Mac Lochlainn (Donegal North East, Sinn Fein)
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The Minister should reflect on the events of the past 18 months, particularly in terms of the relationship between the Government and senior members of An Garda Síochána dealing with legitimate complaints. I reiterate that vast majority of serving members of An Garda Síochána have done no wrong. However, they are hurt and affected by the issues under discussion. When gardaí are on duty and performing difficult tasks - for example, giving out speeding tickets - they are likely to get a bit of aggro in respect of this issue. That is not fair because they were not at fault. It is important that the Minister acknowledge at some point that this was an issue for senior management and that changes need to happen in order to make the latter accountable to GSOC. There must be a better response to any criticisms that are levelled or any allegations of malpractice that are made in the future.

Mick Wallace (Wexford, Independent)
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The Minister has been dragged, kicking and screaming, to the point where he is making a few changes. Despite his claims to the contrary, it is almost two years since the Minister first heard about this matter. He has been dealing with it for all that time and he states that he is dealing with it in a proper manner. If this was Britain, the heads of the Minister and the Garda Commissioner would have rolled long before now.

Seán Barrett (Dún Laoghaire, Ceann Comhairle)
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A question please.

Mick Wallace (Wexford, Independent)
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However, even that would not be enough. There is a need for a complete culture change in the context of how the force operates. What is happening is unfair to all the honest members who are serving on the force. The Minister has undermined confidence and trust in the force. We are not responsible for that.

Alan Shatter (Dublin South, Fine Gael)
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On every occasion on which he has something to say about An Garda Síochána, Deputy Wallace appears to be engaged in a campaign to undermine public confidence in the force.

Mick Wallace (Wexford, Independent)
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No, the Minister is doing that.

Alan Shatter (Dublin South, Fine Gael)
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The Deputy is incapable of acknowledging in any shape for form the good work done across a broad range of matters-----

Mick Wallace (Wexford, Independent)
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Not true.

Alan Shatter (Dublin South, Fine Gael)
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-----and the substantial reduction in crime rates across the vast majority of areas. This is an issue in respect of which he is also incapable of acknowledging that even some of the allegations made have been established to be incorrect.

Mick Wallace (Wexford, Independent)
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The Minister has been dealing with this for two years.

Seán Barrett (Dún Laoghaire, Ceann Comhairle)
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Other questions were asked.

Alan Shatter (Dublin South, Fine Gael)
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As the Deputy knows, Assistant Commissioner O'Mahony's report only became available in May 2013. It was then referred to the Joint Oireachtas Committee on Justice, Defence and Equality-----

Mick Wallace (Wexford, Independent)
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Whitewash.

Alan Shatter (Dublin South, Fine Gael)
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The Deputy is at it again. Is there any aspect of that report he accepts to be true or accurate?

Mick Wallace (Wexford, Independent)
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Why did the Minister-----

Alan Shatter (Dublin South, Fine Gael)
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The Deputy is at it again.

Seán Barrett (Dún Laoghaire, Ceann Comhairle)
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The Minister is way over time. Will he please deal with the supplementary questions that were asked? We are four minutes over time on these questions.

Alan Shatter (Dublin South, Fine Gael)
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Deputy Wallace is making a career out of blackguarding the Garda Síochána.

Seán Barrett (Dún Laoghaire, Ceann Comhairle)
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Will the Minister please resume his seat for a moment?

Mick Wallace (Wexford, Independent)
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The Minister will not deal with the facts.

Alan Shatter (Dublin South, Fine Gael)
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That is exactly what the Deputy is at.

Seán Barrett (Dún Laoghaire, Ceann Comhairle)
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The Minister should deal with the supplementaries that were asked. We are four minutes over the time allocated for these questions.

Niall Collins (Limerick, Fianna Fail)
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In the context of the questions he posed, I hope Deputy Niall Collins will understand that I must formally bring to Cabinet the proposals for the heads of a Bill to amend the Garda Síochána Act 2005. I do not, therefore, want to discuss in detail what will be those proposals. However, I can confirm - as I did not Monday evening last - that where serious allegations are made in respect of misconduct on the part of a serving member of the force, that the matter would be referred to the Garda Ombudsman Commission. There is no difficulty with the latter being the case. I also wish to confirm that when the relevant amendments are enacted, the statutory position will effectively be that the office of confidential recipient will be rendered redundant. That office was created by my predecessor and it gives rise to all sorts of difficulties, allegations and conflicts, which are unfair to members of the force in general and to any individual members who have valid complaints to make. Such individuals do not have full visibility of what happens in the aftermath of a complaint being made.

Deputy Mac Lochlainn referred to accountability. In the past debates have taken place on whether we should have an independent policy authority or whether the relevant matters should ultimately remain the responsibility of the Minister. Under statute, the Garda Commissioner has full independence in making operational decisions. He is the Accounting Officer of the force and he reports to the Committee of Public Accounts. Ireland is a small country and the system we have in place allows for this type of discussion and debate in this Parliament. Ultimately, I am accountable to the House in respect of issues regarding or questions that arise in respect of the police force. The UK created a very complex structure in this regard some years ago and the authorities there have since discovered that it does not work very well and that there is a lack of accountability within it. I am of the view that, no matter how difficult it may be for a Minister for Justice and Equality of the day, Deputies should be able to raise direct questions or concerns with regard to the workings of our police force. I also believe that the Minister must be accountable. If we created a separate entity, we would not have that level of accountability which I believe to be important.