Dáil debates

Thursday, 12 November 2015

Garda Síochána (Policing Authority and Miscellaneous Provisions) Bill 2015: Report Stage (Resumed)

 

Debate resumed on amendment No. 7:

- (Deputy Clare Daly)

12:55 pm

Photo of Clare DalyClare Daly (Dublin North, United Left)
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The amendment deals with a new section on the idea of policing principles, which is welcome. However, it also gets to the heart of one of our objections to the Bill, which is the way in which the Government has rowed back between the publication of the heads of the Bill a year ago and the final product before us now. The idea of a code of ethics to guide gardaí in carrying out their functions was included by the Government under the new policing principles section in the heads of the Bill but it has been removed from the final draft. That sends a completely and utterly wrong signal. The way in which gardaí behave and how accountable they are to the public is critical to how the legislation is viewed overall.

To give an example, we were contacted early this morning by an older couple from the country. Earlier this year, their house was raided by armed gardaí allegedly looking for drugs. They did not find any drugs and there were no drugs or anything like that there. The couple felt incredibly vulnerable on foot of their experience. They made the point that they were not shown any warrant or authorisation to search the property. Nothing like that had ever happened to them before and they had no idea what to expect. They made the point that the gardaí who attended were incredibly polite, courteous and well behaved towards them and that they reinstated the property after the search as much as possible. They left it relatively tidy.

Why is this important? It is important on the one hand because the unfortunate interaction with An Garda Síochána resulted in them being treated respectfully and ethically on the one hand by some of the gardaí who attended but on the other hand the behaviour was not so good because proper procedures in terms of producing a warrant were not followed. That has had a devastating impact on the family. They had never had an interaction with gardaí over the course of the decades of their lives before. Since this incident, they have felt embarrassed around their neighbours. They were told they could get money back from the State Claims Agency for the damage that was done to their property but they have not been able to access that subsequently. They are suffering from health problems, waking up in the night and getting upset by noises in the house because of the experience they have been through.

When people interact with An Garda Síochána, it leaves a legacy. It can be a positive or a negative one. The purpose of the Bill and an independent authority to set a standard which can be independently scrutinised was proposed by us to increase confidence in An Garda Síochána. It was proposed on behalf of the decent gardaí who want to do the job they signed up for in the first place. The Government taking out and diluting a code of ethics is one of the most substantial aspects of the Bill. The Government had included it in the section under discussion in the heads of the Bill, but it has now removed it. I want to know why that is the case.

I also want to know the following. As it stands under the 2007 disciplinary regulations, a breach of a code of ethics, which has not been introduced by any Minister to date, would have constituted a breach of discipline. However, the regulations are secondary legislation and can obviously be revoked at any point by the Minister. The regulations are being removed in terms of the Bill before us. What we now have is the removal of the section that allowed a breach of a code of ethics to constitute a breach of discipline. The Minister, who I think is still in Malta, can ignore this part of it. She has been proclaiming that the Bill provides for a code of ethics for the first time, but this is not true. Provision already existed for a code of ethics but we should be very clear that the legislation before us waters it down. It means that where a garda breaches the code, there will be no sanction. This is unbelievable and a great example of the rowing back undertaken by the Government. We will make more points about the code of ethics but I would like the Minister of State to deal with why the Government removed it from the section between the heads of Bill being put forward and the final draft of the Bill.

Photo of Mick WallaceMick Wallace (Wexford, Independent)
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Rather than going into the things we are looking for in amendment No. 7, which Deputy Daly has highlighted, I note that the policing principles section of the legislation should include reference to a code of ethics. The 2005 Act provided that the Minister shall establish by regulation a code of ethics, including conduct and practice for members of An Garda Síochána following consultation with the Garda Commission, GSOC and the then Irish Human Rights Commission and having regard to European standards. Neither the current nor any previous Minister ever did this. It is a major problem. We have never given gardaí a code of ethics to work towards. Can Members imagine the confusion this has the potential to cause?

There is a barracks in Kilkenny with approximately 60 gardaí in it and there is great inconsistency in how they work. Some of the gardaí are upset at the behaviour of others. Some really good gardaí feel that others do not behave as well as they should. I brought this up in the Chamber a year ago and I wrote recently to the Minister for Justice and Equality and the Garda Commissioner about the issue. The Field Bar in Kilkenny has suffered a campaign of intimidation and bullying that has gone on for seven years. The owners and staff have been affected. It is hard to credit what has happened there.

After I raised this issue last year, everything stopped for a while. Complaints were made to GSOC. Many of them were out of date. Seven were not, but they are still being investigated a year later without result. Reportedly, there has been poor co-operation from the Garda. Good gardaí in Kilkenny are finding it difficult to oppose those who are responsible for poor behaviour. One wonders how this might happen, but we do not have a code of ethics to tell gardaí how they are supposed to behave ethically when carrying out their jobs. Surely guidelines on behaviour would be essential for anyone with such a responsible job.

In 290 days of trading this year, the pub in question was visited by some gardaí 146 times. That is unbelievable. Its competitors are not suffering this and an investigation is warranted. There are good and honest gardaí who are not happy with what is happening, but it is as if people believe that they can get away with doing this. They stopped for a few months after I complained in the Chamber last year, but their confidence returned and they started again. Recently, one of the bar's staff stated that it was like being under siege constantly. This is difficult on the staff and the man and woman's children, who do not understand what is happening. This couple made a living in New York for years before returning home, buying the Field Bar, doing it up and running a business as anyone would. Their children are aghast that someone can suffer this in a country like Ireland.

The amendment is connected to this matter. Poor behaviour is sometimes directly linked with the lack of a code of ethics. The pub gets fined all of the time for late openings even if the staff are only cleaning up, which warrants an investigation. It got fined again a few weeks ago. Two gardaí arrested the wife, bundled her into a van and brought her to their barracks. They let her out an hour later after the fine was paid. This is not normal. Two weeks ago, I wrote to the Minister for Justice and Equality and the Garda Commissioner about it. I hope that they do something about it, as it is very bad.

Under the Bill, the authority will set a code of ethics, but the clause making a breach of the code of ethics a breach of discipline, as mentioned in the heads of the Bill in November 2014, has been removed. What is the rational explanation for this? It beggars belief. Under the 2007 disciplinary regulations, a breach of a code of ethics, if one existed, would be a breach of discipline. This provision is included in the 2005 Act. However, the regulations are only secondary legislation and can be revoked at any point by the Minister's executive power. In subsequent amendments, we will argue that a code of ethics should be included in the Bill and any breach of such a code should constitute a breach of discipline and be sanctioned accordingly. If sanctions are not in place, what is the point? We have serious problems, but it is as if the Government is pretending that they do not exist.

Eighteen months ago, we all acknowledged that everything was not well with policing. There was a great deal of fanfare and claims that changes would be made. The then Garda Commissioner, Minister for Justice and Equality and Secretary General of the Department of Justice and Equality went, but nothing has changed. Despite the GSOC Bill, GSOC is still not fit for purpose because it has no power to hold the Garda to account. The Government went through the charade of introducing legislation, but that was toothless. We are now setting up a so-called independent policing authority, but the Government hand picked its head and will hand pick the rest of its personnel. The authority will not be independent - it will be a pup of the Government, another quango. We were in favour of an independent policing authority, but it would have been better for matters to stay as they were because we have created a fig leaf of independence. It is not a buffer between the Garda and the Minister. The Minister's paws are all over it, it has no real power and it is not independent of the Government of the day. We will continue to have problems with policing until we depoliticise it, but the established parties obviously do not want that. This is a shame.

Good gardaí - whistleblowers - have come forward in recent years. The likes of Maurice McCabe, John Wilson, Nicky Keogh, Keith Harrison and, in Cork, Jack Doyle have stuck out their necks. There are many more. Many people are proud to be a part of policing in Ireland and love the idea of being in an organisation that looks after the security of the State, individuals and communities, but many are not happy with how it is panning out. It could be so much better. Everything was not right a number of years ago, but there was a greater dimension of policing with people's consent. Sadly, that is disappearing. The Garda is now seen as more of a police force than a police service. The Government has a major responsibility to address this problem.

1:05 pm

Photo of Ann PhelanAnn Phelan (Carlow-Kilkenny, Labour)
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Section 5 inserts a new section 3B into the principal Act, which sets out the policing principles that will underpin the provision of policing services. Under these principles, policing should be conducted independently, impartially, in accordance with the law and in a manner that respects human rights and supports the proper and effective administration of justice. Such principles are a feature of the legislation underpinning the police services in Northern Ireland, Scotland and New Zealand.

The Deputies' amendments seek to replace the text in the Bill with text from the general scheme of the Bill that related to the principles. The Deputies will be aware that a general scheme is not of itself law. Rather, it purports to set out the general policy requirements that are sought to be included in the legislation when drafted by the Office of the Parliamentary Counsel. Following discussions between the Minister's officials, parliamentary counsel and legal advisers in the Office of the Attorney General, the provision relating to policing principles was developed to set out a series of overarching and guiding principles to underpin the provision of policing services in the State rather than to impose specific requirements on individual members of the Garda Síochána. This is not to say that the specific requirements in the amendments should not inform members in carrying out their day-to-day duties, though.

In this context, I draw the Deputies' attention to the solemn declaration under section 16 of the principal Act that is made by each garda before a peace commissioner.

Each member declares that he or she 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. Furthermore, each declares he or she will, to the best of his or her skill and knowledge, discharge all duties according to law. In the circumstances, the Minister invites the Deputy to withdraw the amendment.

1:15 pm

Photo of Clare DalyClare Daly (Dublin North, United Left)
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We certainly will not be withdrawing it. I am a little surprised the Minister of State did not deal with the issue raised, which concerned why the Government removed the proposal from the heads of the Bill concerning the section in question. I know from what she said that the Attorney General, who popped up in another scenario similar to this one, is being used but she did not say the proposal is not possible in this instance because it was obviously in the heads.

Comparing this State with Northern Ireland is completely disingenuous because it is precisely under this clause that Northern Ireland is leaps and bounds ahead of us. The North accords its code of ethics a far stronger status. It represents a standard by which the police are measured there. In fact, the Chief Constable in the North is obliged by law to ensure all his officers have read and understood the code. This requirement was in the heads of the Bill but was taken out in the final draft. It is important to note that the policing principles in the North set out that when carrying out their functions, the police must be guided by the code of ethics, which again gives the code added status. The board in the North includes an assessment in its annual report as to the performance of the police in this regard. Therefore, there is a completely different ballgame in the North. It would be far more accurate to state the amendment before the House in our names is precisely seeking to have a Northern Ireland scenario whereby a code of ethics would be given status and all ranks of the Garda would be required to behave in accordance therewith. The Garda Commissioner would be accountable for enforcing it. The reason, as outlined by Deputy Wallace, is precisely because there is a need for public scrutiny of Garda behaviour. There is a need to have democratic accountability in the Garda as a result of some horrendous activities that have been ongoing in this State over years. We need to include the code to guide behaviour in the interest of all in society.

Photo of Mick WallaceMick Wallace (Wexford, Independent)
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We do not expect our amendments to be accepted; that is what happens in here. It is good that we get a chance to discuss them, however, except in the case of those that are ruled out of order.

It would be great if there were a rethink of how the policing authority is being set up. It really could represent a breakthrough but it will not in its current form. There will actually be no change at all. If the Government does nothing else in its remaining term in office, it should talk to Dr. Vicky Conway and Professor Dermot Walsh, who know more about this than any of us. We are not asking the Government to talk to us. The Government should determine what the experts think about how best to move forward. Time spent talking to them would be time well spent. We will not be crowing, "We won, we won." We want things to be done right and do not give out about policing for the sake of it. It would be great if things were different. Dr. Conway and Professor Walsh could make a huge contribution and the Government should listen to them. It is not too late. I admit it would be unorthodox to talk to them. I do not have a problem with unorthodoxy, as the Minister of State might suspect, and believe the Government should buy into my philosophy on this occasion.

Photo of Clare DalyClare Daly (Dublin North, United Left)
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The reason we are going on about this amendment is we believe it to be a particularly important component of what we are trying to achieve in the multiple amendments we have tabled. Unfortunately, many of the really important amendments to be moved later in the context of the composition of the authority itself, amendments we believe are critical to its independence, have been ruled out of order. Therefore, we will not get a chance to discuss them. However, we must step back and examine this matter strategically and determine why we are considering a new Garda authority. It is because of the behaviour of gardaí that came into the spotlight in recent times. In many ways, it is nothing new. We had the Morris tribunal and, in fairness, we had the findings of the Smithwick inquiry, which implied gardaí praised the pack mentality ahead of honesty. People throughout the country have experience of the blue wall of silence being alive and well. It is actually heroic gardaí at the centre of the organisation who have allowed the spotlight to be put on this issue for the first time in many decades. In that sense, this is an opportunity we should not ignore.

We all know that in the lifetime of this Dáil, because of the work done by the whistleblowing gardaí who brought to light the malpractice associated with penalty points, many citizens began to come out of the closet and tell stories about their own experiences at the hands of the Garda. Quite often, these were just ordinary people going about their business when some event caused them to have dealings with the Garda. In many instances, it was a tragedy, such as the death of a loved one in unexplained and horrific circumstances, on foot of which the investigation was not handled appropriately. The family might not have been dealt with sympathetically, information might have been covered up and people might have been kept in the dark. This is the stuff that separates the population from the gardaí and that prevents us from having policing by consent or a police service that sees its role as being to serve the public rather than cover up for its mistakes or, worse, deliberate wrongdoing. It is just not good enough.

We have discussed repeatedly in the House the independent review mechanism that the Minister set up on foot of all the cases coming to light. It has been our assertion that this process was actually to derail the spotlight being put on these issues rather than make any serious attempt to deliver transparency. We do not say that lightly or in a mean way; we are saying it based on the experience of those hundreds of citizens who, in good faith, gave information to the panel for assessment and who, from what we can see, have been told in 95% of cases that it will not be investigated any further. Every day, we still get cases on our desks of people who are having poor experiences. One tragic case that was before the tribunal involves the family of a Mr. John Kelly who was found in the canal in the Dublin docklands in 2008. There are very serious allegations of unexplained information concerning John's death. His sisters live in Australia and his mother, who has obviously been traumatised by the experience, lives in Dublin. In the relatively recent past, gardaí visited that woman with information on John's death that had been given to them over a year ago. Allegedly, it contained names of people who were present on the night of his death. A year later, gardaí arrived at the bereaved mother's door not to investigate the death based on the new evidence but to say they want to investigate the content of the letters. The family is not being co-operated with properly. It is already bereaved and has probably been tipped over the edge by this. Like Deputy Wallace, the family has written to both the Minister and the Commissioner, again receiving no answers. It does not augur well for confidence in the police force.

The behaviour of gardaí should be laid down in the principles. We must set out why somebody would want to become a garda and the standard by which he or she should be held to account.

We are trying to put it in law and up front that they are a service, that they are human-rights-compliant, and that they should be deemed to be behaving ethically. To be quite frank, a lot of the behaviour that we have come across has not been ethical in any way whatsoever. It would not give confidence to citizens to go to the Garda if they are in trouble. That is a pretty shocking thing for anybody to have to say, but we would certainly believe it based on our experience. Therefore, we are making a final plea to the Minister of State. This, or at least a part of it, was in the heads of the Bill. If the Bill is to mean anything at all, it has to be reinstated. We would really like it to be included in the Bill.

Amendment put:

The Dáil divided: Tá, 32; Níl, 69.


Tellers: Tá, Deputies Clare Daly and Mick Wallace; Níl, Deputies Paul Kehoe and Emmet Stagg.

Amendment declared lost.

1:30 pm

Photo of Alan FarrellAlan Farrell (Dublin North, Fine Gael)
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Amendments Nos. 8 to 73, inclusive, 76, 77, 129, 130, 132 and 139 to 142, inclusive, are related and may be discussed together by agreement.

Photo of Mick WallaceMick Wallace (Wexford, Independent)
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I move amendment No. 8:

In page 8, to delete lines 6 to 22 and substitute the following:“ “9. (1) Subject to this section, the appointment of a person to be the Commissioner of the Garda Síochána shall be made by the Authority following consultation with the Government.

(2) The Authority shall not appoint a person under subsection (1) unless it has invited the Service to undertake a selection competition for that purpose and the Service has undertaken such a competition.

(3) The Authority shall agree with the Service the selection criteria and process that are to apply to the selection competition under this section.

(4) A person shall not be appointed by the Authority under subsection (1) unless it is satisfied that the person is suitable for appointment as the Garda Commissioner by reason of his or her possessing such relevant experience, qualifications, training or expertise as is appropriate having regard, in particular, to the functions assigned to the Garda Commissioner by or under this Act.”.

It is a little mad that we are discussing approximately 70 amendments together. Anyway, we do not make the rules.

It is clear what this amendment is about. We are seeking to have taken out of the Bill the following text in section 8: "the appointment of a person to be the Commissioner of the Garda Síochána shall, upon the nomination of the Authority, be made by the Government." We reckon the decision should be made by the authority. We also want to remove the proposed section 9(2) that would amend the principal Act. This subsection begins: "The Authority shall not nominate a person under subsection (1) unless it has, with the prior approval in writing of the Government..." The proposed section 9(3) begins: "The Authority shall, with the approval of the Minister..." I could not make this up. The idea that the authority has any real power is simply not true.

All of this is under part 2, entitled Personnel and Organisation of Garda Síochána Appointments. Section 9 of the 2005 Act provides that the appointment of the Garda Commissioner shall be made by Government. Let us consider the current situation before we move on. Section 10 of the 2005 Act provides that the Government may appoint as many deputy and assistant commissioners as it chooses. Section 11 provides that the Government may remove any of these office-holders for stated reasons, including because "the person has failed to perform the functions of the office with due diligence and effectiveness or, in the case of the Garda Commissioner, has failed to have regard to any of the matters specified in section 26 (2)."

Section 13 sets out that the Government may also appoint as many superintendents or chief superintendents as it wishes. It also sets out that the Garda Commissioner can appoint however many persons to the rank of Garda sergeant and inspector as the Commissioner sees fit. The Act goes on to say that, with the consent of the Government, the Commissioner may dismiss them if, because of their conduct, their continued membership might undermine public confidence in the Garda Síochána and dismissal is necessary to maintain that confidence.

Under the 2005 Act, the Government alone makes the appointments of the Garda Commissioner and deputy and assistant commissioners and the Government alone may remove them. The policing Bill we introduced provided that the board would make the appointments and could remove the Garda Commissioner and deputy and assistant commissioners following consultation with the Minister. Moreover, we provided that the board would appoint superintendents and chief superintendents in consultation with the Minister. We left the Commissioner with the power to make appointments below the rank of inspector and the power to dismiss them for the same reasons, but with the consent of the board instead of the consent of the Government. Our Bill also set out that the board, in consultation with the Minister, would decide the number of appointments to the rank of chief superintendent and superintendent.

The new Bill under consideration sets out in section 8 that the Garda Commissioner and any deputy Garda commissioners are to be appointed by the Government. The section states that the Government shall accept the nomination of the authority. However, the authority can only nominate in accordance with the recommendation of the Public Appointments Service, which will provide the authority with one name only. There is not much merit in that. Before even asking the PAS to undertake a selection competition, the authority must seek prior written approval from Government to do so. The authority must also get the approval of the Minister before agreeing the selection criteria and the process with the Public Appointments Service for the competition. Furthermore, the Government may veto the authority's nomination in exceptional circumstances where it has stated the reasons. The Government can request a new nomination from the authority, which shall make that nomination unless the authority disagrees with the Government's reasons and wishes to make representations to the Government.

It is not clear what will happen. Could the authority refuse? We do not know.

Section 8 also sets out that if the Garda Commissioner or any deputy resigns, he or she addresses his or her letter of notification to the Minister and the Government notifies the authority later that the Commissioner or deputy has resigned. This is not remotely similar to the Bill or policing authority we envisaged. Under the Government's new Bill, removal from office may be by Government decision alone, with only a duty to consult the authority if the reason relates to policing services for the same reason as set out in the 2005 Act. The authority can only recommend to the Government that the Commissioner or deputy commissioner be removed if the reason relates to policing services, and in any event the Government is only obliged to consider that recommendation and has no obligation to act upon it.

The Government's Bill also provides that the Government, for policing and State security reasons, and the authority, in terms of policing services, have the power to remove assistant commissioners, chief superintendents and superintendents. It is also proposed that the Minister for Justice and Equality and the Minister for Public Expenditure and Reform would determine the number of appointments to assistant Garda commissioner, chief superintendent and superintendent level, but that the authority may make these appointments, subject to a selection competition and any regulations made.

However, that means that the system under the 2006 and 2014 regulations remains in place. It is not a case of selection by the Public Appointments Service but rather that the promotions advisory council and promotions advisory board, controlled by the Commissioner and Minister, will decide on the candidates the authority will be asked to rubber-stamp. The heads of the Bill in November were different and proposed a cleaner division. The Commissioner or deputy commissioner may be removed by the Government on recommendation of the authority for policing reasons, and the Government could dismiss him or her for State security reasons.

The authority alone had the power in the heads of the Bill to remove assistant Garda commissioners, chief superintendents and superintendents from their positions, but in the Bill as drafted the Government and the authority have the power. Thus, the authority is weaker again in this regard than in the original heads of the Bill. There was no mention in the heads of the Bill of the Public Appointments Service in the appointment of Commissioners, deputy commissioners and assistant commissioners.

It is difficult to see how An Garda Síochána can be expected to function as a cohesive and disciplined body when, depending on one's rank, one can be removed by, and is thus answerable to, one or two of three different bodies, namely, the Government, the authority and the Government or the Commissioner. Further confusion arises when one body appoints and another has the power to remove. For example, in the case of assistant commissioners, chief superintendents and superintendents, where the authority makes appointments, at least nominally, the Minister decides how many appointments are to be made and the authority and the Commissioner can remove them. It is sowing the seeds for confusion.

The Bill states the authority shall have full power of appointment of the Garda Commissioner, subject only to consultation with the Government. It is unfair and irrational to ask the authority to be responsible for systemic issues and policies and for performance issues when it cannot appoint or remove those responsible for implementing those policies and priorities. Given that the assistant commissioner, chief superintendent and superintendent all work within a hierarchal structure under the Commissioner and deputy commissioners who are appointed by the Government, giving the authority the power to appoint and remove them is meaningless.

Furthermore, this power of the authority is largely circumscribed by existing regulations regarding promotion, which will continue. Through these regulations, the Minister and Commissioner will continue to make these decisions through their proxies on the promotion board. It is also unfair and irrational to expect the authority to be responsible for resources, budgets and staffing if it has no part to play in deciding the number of appointments to be made to senior management ranks, such as assistant chief superintendent and superintendents.

Dr. Vicky Conway said that the authority should have responsibility for the appointment of the Commissioner, with the approval of the Minister, and that serious consideration should be given to allowing the authority to appoint other senior ranks such as deputy commissioner and assistant commissioner. She also recommended that the authority should have the power to request the Commissioner to retire. The Irish Human Rights Council and the Irish Council for Civil Liberties, ICCL, recommended that an authority be responsible for the appointment of senior managers, including the Commissioner, but the Government has failed to take their recommendations on board. Once again, I ask it to reconsider the decision.

1:40 pm

Photo of Clare DalyClare Daly (Dublin North, United Left)
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This is an important part of the Bill. It is utter lunacy that we are discussing 74 amendments together, but we will try to do our best. This critical section deals with appointments. It was one of the key parts of the Bill in terms of all the submissions from NGOs, statutory human rights bodies, other organisations and policing experts who were consulted. Let us examine the current Bill. Under the current Garda Síochána Act 2005, the Government alone appoints the Garda Commissioner, the deputy commissioner and assistant commissioners. It alone can remove all these ranks for any stated reason, including but not limited to disobeying a directive from the Minister.

The Bill put forward by Deputy Wallace on two occasions and which has passed Second Stage provided for the board to make those appointments and remove people at Garda Commissioner, deputy commissioner and assistant commissioner level following consultation with the Minister. It also proposed that it should be the board that appoints superintendents and chief superintendents, in consultation with the Minister. It left the Commissioner with the power to make only appointments below the rank of inspector and to dismiss them for the same reasons, with the consent of the board rather than the Government.

Our Bill sought to put the board centre stage and give it the teeth and ability to do what it is supposed to do, namely, be an independent oversight of the functioning of An Garda Síochána. How can one oversee an organisation if one is not charged with responsibility for putting in place the people at the helm of the organisation? It takes any credibility away from what the Government proposes. Our Bill set out that the board, in consultation with the Minister, would decide the number of appointments to the rank of chief superintendent and superintendent. It gave flesh to the idea of an independent policing authority that would have a very hands-on approach at the highest and middle echelons of the Garda service, allowing the authority very much to put its stamp on the situation.

As Deputy Wallace said, how can gardaí at any level of management operate when they are answerable to so many bodies? It does not make practical sense. They are responsible to the Government, the authority, the authority and the Government or the Commissioner, depending on their rank. One body can appoint people and another can remove them. If the authority is to be real and independent, it should have the full power to appoint and remove people.

It should most definitely have full power over the appointment of the Garda Commissioner, subject only to consultation with the Government. That does not mean the Government cannot veto an appointment, but its views should most definitely be taken on board. The decision should be taken by the authority. As Deputy Wallace said, how can the authority be responsible for systemic issues, overall policing and policy matters but not be in a position to appoint or remove those who are charged with implementing those policies and decisions? It does not make practical sense.

Existing regulations regarding promotions will continue, with the Minister and Commissioner at the helm, in terms of the various ranks and making decisions. In some instances they may be decisions by proxy. There is no change in the system.

It is as we were but worse, because there is the fig leaf of the pretence that we are doing something about it. Every organisation, and I will deal with some of them, stated that the authority should have the power to appoint and remove other senior ranks. This input was provided by the Irish Council for Civil Liberties, the Irish Human Rights and Equality Commission and others. I remind the Minister of State of the Labour Party's Garda authority policy paper published last year, which also recommended that the authority should appoint the Garda Commissioner and other senior staff through open competition, and should be empowered to hold the Commissioner to account. This is what the Labour Party produced in a policy paper last year but it is not what we are getting here. It also spoke about preparing a policing plan with measurable targets, but none of these are in the final legislation as it stands.

We have mentioned Northern Ireland on a few occasions, but let us look at the board there, because we should take cognisance of better practices than our own. The Northern Ireland police authority has a clear primary function, set out in statute, to hold the Chief Constable and the Police Service of Northern Ireland publicly to account in the exercise of their functions, including police compliance with the Human Rights Act 1998, which is very much in stark contrast with the legislation we have before us. The Northern Ireland Policing Board appoints, disciplines and dismisses the Chief Constable, the equivalent of our Garda Commissioner, and senior police officers of assistant chief constable level and above, subject to the approval of the Secretary of State. The Secretary of State can, however, require the board to call upon the Chief Constable to retire. The Northern Ireland authority has far greater power than is provided for in the Bill. We have relied on some of the expert input into the process by people such as Professor Dermot Walsh and Dr. Vicky Conway. Dr. Conway made the point that the role of the Minister should be transferred to the authority. This is what the Bill should have been about in its entirety. The authority's main function should be, as it is in Northern Ireland, to hold the Garda Commissioner to account in his or her functions, and to hold him or her accountable for the functions of those under his or her operational direction. Obviously the Commissioner should still retain operational independence in the main function of directing or controlling the Garda Síochána.

The authority must have responsibility for the appointment of the Commissioner. Dr. Conway states that this should be with the approval of the Minister, but also that serious consideration should be given to allowing the authority to appoint other ranks, which is precisely the situation we included in our Bill. The authority should also have the power to ask the Commissioner to retire. She makes a very good point on making the Commissioner accountable. She states that there can be no doubt that an empowered independent authority has the capacity to depoliticise policing in Ireland and make a substantive contribution to the governance and accountability of policing. This is what we wanted out of the process. She also stated that an authority which is not given specific powers, such as the setting of police plans, the determination of budgeting and the appointment of the Commissioner could, on the other hand, be a retrograde step for Irish policing, and this scenario would create a semblance of independence and accountability without the reality, just as was done with the creation of GSOC in the past decade. This would be a disservice to Irish society and to the members of the Garda Síochána. I totally and one hundred percent agree with the sentiment Dr. Conway put forward in these words, because we all know, and sadly many citizens know, that when people go to GSOC they do not get what they think they will get, which is a vehicle for calling the Garda to account. It is a semblance on paper. When we first engaged with GSOC we thought it was a body in collusion, working to cover up the activities of An Garda Síochána, and sadly many citizens believe this to be the case. Our experience led us in a different direction, whereby we found this was not the case, but that the organisation itself was set up to fail. It cannot do what it is supposed to do and this has made the situation worse. People who are victims of crime and the victims of Garda malpractice have gone to GSOC looking for help but have found another door closed in their face. This has made it even worse and, building on the points we made earlier about the independent review mechanism, it is really reprehensible.

It is really important to speak about this part of the Act, on which most of the bodies which made an input commented. The Irish Human Rights and Equality Commission is the Government's statutory body on human rights. In fairness, it went to the trouble of making an input into this process. It made it very clear the authority should have a disciplinary role regarding the Garda senior management, as the board does in the North. This is not envisaged in the Bill before us, despite the fact that the Guerin report and the Garda Inspectorate report highlighted two overriding problems regarding the absence of internal disciplinary procedures at senior management level and the absence of ways to deal with underperformance at senior management level. The Irish Human Rights and Equality Commission recommended an alignment of disciplinary procedures flowing from GSOC investigations. This was a really good and important contribution, because we should look at the problems highlighted by the Guerin and Garda Inspectorate reports.

It is an open secret, as everyone will say, that when certain fellows go into the ranks of An Garda Síochána, one can almost tell in Templemore that they will rise to the top because their father was a chief superintendent or an assistant commissioner. One can nearly hand-pick the fellows. It is an open secret that it is about whom one plays golf with, whom one is friendly with and whether one is in the know, and that people look after matters for each other. This type of insular, closed mentality exists and is something that many decent gardaí find very hard to deal with. Many retired gardaí have come to us to say how unhappy they were with the functioning of the service and how they would have benefited from more accountability in this regard.

Let us look at the hierarchy of An Garda Síochána at present. We have a Garda Commissioner, two deputy commissioners and 12 assistant commissioners. We know that at present a group of them, including the Garda Commissioner, a deputy commissioner and a number of the assistant commissioners, all came from one region in Galway, where they headed up the area. They all ended up working closely together and rising to the top, almost like a little cartel. They are a group within a group, and this is really dangerous. I know the service is small but the point we are trying to make is that this insular behaviour is not good, and self-appointment and self-regulation do not work. We know this, and it was most glaringly brought to light recently in the cases of the serving Garda whistleblowers and the instance highlighted on "This Week" a number of weeks ago. A serving Garda whistleblower made a complaint to senior officers at assistant commissioner level at the behest of an investigation initiated by the Garda Commissioner. Information was leaked back to the person against whom the complaint was made, this person being a friend of the assistant commissioner sitting on the panel. The complainant made a complaint to the Commissioner about this, subsequent to which the Commissioner appointed the same assistant commissioner to investigate and conduct a disciplinary procedure regarding a complaint made by different garda against the same person to whom the information had been leaked. Seriously, how in God's name could anybody have confidence in the service if this type of behaviour is going on?

Self-regulation, or gardaí investigating themselves, no more than politicians or whoever else investigating themselves, does not work. The whole purpose of the Bill is to have an independent authority which sets the scene on this. It is interesting to see that the Irish Council for Civil Liberties also commented on this particular area of the Bill. It recommended that the new authority should fill the gap in civic oversight and should have an oversight role in respect of Garda contracts, management and performance, the setting of clear performance goals for the Commissioner on an annual basis, and the appointment of senior gardaí up to and including the Commissioner, as well as a role in monitoring compliance with human rights and priorities.

That is what we could have had but instead we have a complete hodgepodge of different arrangements for different levels of Garda recruitment. It is a recipe for absolute chaos. It is not fair to gardaí at any level and it is unfair to the independent authority because it implies that it is not really independent or an authority but rather a rubber stamp that exists to give a bit of a nod and nothing more. In some of the amendments we are dealing with, it is given the right to nominate a person. It can put somebody forward but it cannot appoint anybody. The authority does not have a say so the name it proffers can be ignored. We know the Minister has the overall say with the promotions board having the right to nominate two people and the Garda Commissioner allowed to nominate one person. It amounts to control by the Minister and the Garda Commissioner, as it is at the moment. Now it will be a little bit by proxy but it is just not good enough.

2:00 pm

Photo of Pádraig MacLochlainnPádraig MacLochlainn (Donegal North East, Sinn Fein)
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This is a large grouping of amendments so we are forced to speak to a range of them at the same time. I imagine this will take considerable time.

The first group of amendments I wish to speak to are amendments Nos. 9 to 13, inclusive and 15 to 21, inclusive. These amendments are in line with the need for the authority to be truly independent. The Minister should not be permitted to appoint the Garda Commissioner. The role of the authority under this Bill in recommending the appointment is not strong enough and there should be an amendment to allow for the authority to appoint the Garda Commissioner directly. If the Garda Commissioner is going to be accountable to the authority, the latter must have effective powers and mechanisms to oversee the appointment and removal of the Garda Commissioner. These amendments would correct the Bill and achieve that objective.

The next set of amendments includes amendments Nos. 23 to 35, inclusive. In line with the need for the authority to be truly independent, the Minister should not be permitted to appoint the deputy Garda commissioner. The role of the authority under this Bill in recommending the appointment is not strong enough. This should be amended to allow for the authority to directly appoint a deputy Garda commissioner. A deputy Garda commissioner will be accountable to the Garda Commissioner who is accountable to the authority. The authority needs to have effective powers and mechanisms to oversee the appointment and removal of the deputy Garda commissioners.

The next set of amendments includes amendments Nos. 37 to 62, inclusive. These amendments relate to the need for the authority to have the power to appoint directly and remove ranks from superintendent up. The Bill must be amended to reflect this. Our objective is that the authority would oversee every promotion and appointment in An Garda Síochána, from sergeant right through to Garda Commissioner. Right now, there is a view among members of An Garda Síochána that many promotions over the years were not down to meritocracy but rather who one knew. That is not to slight every officer promoted, as there are many fine senior officers in An Garda Síochána. That is a perception we must remove by putting in place oversight that is clearly independent and based on a meritocracy. In a football team, if a player is picked based on performance, the entire team has belief and it is better for everybody. If it is felt that somebody has not been appointed under a meritocracy, there is an impact on the morale. That applies in the police service and, more important, the service delivered to the public, so we must deal with that.

I will speak to amendment No. 62 which relates to the current provision allowing the Minister to hold, initiate and oversee inquiries on policing matters. That must be amended to give this power to the authority. Amendments No. 70 to 73, inclusive, are technical amendments in line with the new provisions relating to the removal of officers. The basis of amendment No. 76 is to amend the Bill to provide that the Minister's consent is not required for appointment of civilian Garda staff and to give oversight to the authority in this regard.

There is a list of all the powers retained by either the Minister or the Government over policing. The temptation might be to justify these individually but consideration of the totality of this crucial list indicates the scale of control that remains centrally vested. For example, the Garda Commissioner and deputy Garda commissioner will be appointed and removed by the Government. The Garda Commissioner is accountable to the Government and it has been stated that the Garda Commissioner will remain accountable to the Government on matters of national security, but that is not accurate. The original provision on accountability is not altered. The Garda Commissioner will remain accountable to the Minister for the performance of the Garda Commissioner's functions and those of An Garda Síochána. This concerns all aspects of policing and not just national security. Policing plans, strategies and priorities must be confirmed by the Government according to the Bill and security priorities will be set by the Government. The budget is also set by the Government.

The Minister may demand any documents of An Garda Síochána and issue written directives to An Garda Síochána and the authority. Closed circuit television schemes must be approved by the Minister and ministerial consent is required for the Garda Síochána Ombudsman Commission to investigate the Garda Commissioner. The Minister decides the number of senior rank positions and consents to the number of civilian staff, the appointment of members to the audit committee and the appointment of the chief executive officer of the authority. The Minister decides what constitutes State security. Government consent is required for gardaí to work with a police service in another state and the Minister authorises delegation of the Garda Commissioner's functions to the deputy Garda Commissioner. The Minister may appoint a person to inquire into any aspect of policing, and statistical information on crime compiled by An Garda Síochána is to go to the Minister and not the authority.

Members can see that a serious set of powers is retained by the Government through the Minister. We hoped the amendments from the Opposition could be engaged with but instead, for the fourth day in a row, that will not happen. I have been justice spokesperson for three years now and I was foreign affairs spokesperson for my party before that, but I have never seen a case where there were two days of Committee Stage debate and two days of Report Stage debate with the Minister absent for all of them. I say this with all due respect to the Minister of State present. We have seen two Ministers of State, one of whom is loosely attached to the justice portfolio, but the Minister of State present has no attachment to justice. It is outrageous that this happens when Opposition justice spokespersons have engaged in good faith and rightly have put much work into this Bill because it is of immense importance. This is one of the important planks mentioned by the Government in the reform of An Garda Síochána arising from the various scandals going back to the Morris tribunal. This is big stuff but we have not had a Minister before us.

Do not give us the guff that the Minister is doing important business. She has been doing so over recent days but we did not set the schedule, because the Government does that. It is-----

Photo of Alan FarrellAlan Farrell (Dublin North, Fine Gael)
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Deputy-----

Photo of Pádraig MacLochlainnPádraig MacLochlainn (Donegal North East, Sinn Fein)
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I am not finished yet.

Photo of Alan FarrellAlan Farrell (Dublin North, Fine Gael)
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In fairness-----

Photo of Pádraig MacLochlainnPádraig MacLochlainn (Donegal North East, Sinn Fein)
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I have a right to put this on the record. It is the Government's-----

Photo of Alan FarrellAlan Farrell (Dublin North, Fine Gael)
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Yes, but the Deputy may not speak over me. It is just for a moment, if I may. I suggest the Deputy takes this up with the Whip, because he is correct. However, it is not in line with Standing Orders to discuss the issue at this moment. Will you continue your contribution on the amendments, please?

Photo of Pádraig MacLochlainnPádraig MacLochlainn (Donegal North East, Sinn Fein)
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Okay. That is fair enough.

I have made my point. It is unprecedented and outrageous. Many Ministers receive amendments. We put a huge amount of work into our amendments and we engaged through all of it. Unfortunately we were disadvantaged by the fact that the justice committee was scheduled for a date and time at which all the Opposition made clear we could not make it. The committee still went ahead with only Government members present and the amendments we could not move that day have not been allowed on Report Stage. The way the Opposition has been treated in respect of this legislation since Second Stage is unprecedented and outrageous. That is why we are going to call a vote on every single amendment and take as long as we can to get this Bill through until the Minister comes back next week and engages with us seriously. It is an insult how we have been treated regarding this. It is also an insult to the many fine people who have been making submissions to the justice committee, who have attended various seminars and given their expert opinion. It is not just us, as Opposition spokespersons, but also those outside who have given their contributions. That is my contribution. I appreciate the Acting Chairman's intervention and his guidance is accepted.

2:10 pm

Photo of Ann PhelanAnn Phelan (Carlow-Kilkenny, Labour)
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Without wishing to repeat all the points raised in the detailed Committee Stage debate on these amendments, it is important to point out that the effect of the amendments would, in particular, be to remove from the Government and the Minister for Justice and Equality any role in the appointment or dismissal of members of the Garda Síochána. In the course of drafting this Bill, the Attorney General has advised that, as a matter of custom, practice and proper constitutional interpretation, the function of the Garda Síochána in the exercise of the policing power of the State has been interpreted by the Courts as a function that is exercised as part of the Executive power of the State. While an Executive power of the Government under Article 28.2 can be delegated, the advice is that it would not be constitutionally permissible for such a delegation to amount to an abdication of the Government's Executive power. I want to emphasise that the exercise of the policing function is an aspect of the Executive power of the State. Many of the opposition amendments proposed for this Bill would remove from the Government the ability to comply with the constitutional duties in relation to the exercise of that power. That in itself would be unconstitutional.

Within this framework, the Attorney General has advised that any legislative proposal in relation to the establishment of a policing authority should preserve, ultimately, the power of the Government to appoint or to dismiss the Commissioner. As Deputies will appreciate, in order to address the relevant constitutional concerns, the advice of the Attorney General is reflected in the provisions of the Bill. In view of of the importance of their functions, a similar approach has been adopted for deputy Garda commissioners.

When considering the amendments it is also necessary to take account of the fact that the Garda Síochána is the security service for the State. Deputies will be aware that, under the Bill, the Garda Commissioner will continue to be accountable to the Government in respect of national security. This approach has a wide measure of support within the Oireachtas. It goes without saying that national security is a key function of the Government. In the Minister’s view, leaving aside the very clear constitutional dimension, the appointment of the head of the national security service must rest with the Government. For similar reasons, the Government must continue to have the capacity to remove senior Garda members on security grounds.

While there are other issues I might raise in relation to the Deputies’ amendments, at this point I believe I should concentrate on the functions that are being conferred on the policing authority by the Bill in respect of the appointment and removal of Garda personnel. First, I would point out that, under the Bill, the authority will have a leading role in relation to a large body of Garda appointments. This will operate, in particular, at the very highest levels of the Garda organisation. It will also have general functions in the areas of Garda appointments and promotions. With regard to the Garda Commissioner, or a deputy commissioner, all future appointments to these posts will be made solely on the basis of a nomination made by the authority following an open selection process undertaken by the Public Appointments Service.

From an international perspective, it is very much the general practice that governments either make or must approve top-level police appointments. For example, while the Chief Constable is appointed by the Northern Ireland Policing Board, the appointment must be approved by the Northern Ireland Minister of Justice. Similar arrangements are also in place in Scotland, which has a recently established police authority.

In the case of Garda personnel in the ranks from superintendent to assistant commissioner, the Bill provides that all the appointments will be made directly by the authority. Additionally, the authority will appoint persons to positions within the Garda civilian staff which are equivalent to or above the rank of chief superintendent. With regard to dismissals, and in line with the constitutional and security principles I outlined, the Garda Commissioner or a deputy commissioner will be removed by the Government. At the same time, the authority will have the power to recommend to the Government that a Garda Commissioner or deputy commissioner be removed for policing reasons. Dismissals of persons in the ranks of superintendent to assistant commissioner, for policing reasons, will be undertaken by the authority. It will also be able to suspend a person from duty in advance of a removal decision.

While the Deputies’ amendments go beyond the appointment and dismissal of Garda personnel, it is important to make clear that the overall approach adopted by the Government to the Bill is that relevant functions should be transferred from the Government and the Minister to the authority where this is permissible and appropriate. However, the transfer process has its limitations and it has, of course, to be undertaken against the general constitutional and policy backgrounds that I have highlighted. Within these frameworks, for example, the Minister cannot, for substantial legal and policy reasons, accept a situation, as proposed in the amendments, where the Minister of the day would not be involved in determining the numbers of persons to be appointed to senior Garda ranks. Accordingly, on behalf of the Minister, I ask the Deputies not to press the amendments.

Photo of Mick WallaceMick Wallace (Wexford, Independent)
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The point we have been making is that the new police authority should have full power of appointment of the Garda Commissioner, subject only to consultation with the Government. We are not actually rubbing the Government's involvement in policing out of existence, but the Minister of State has said that what we are proposing would remove from the Government the power to control policing. If she thinks that is what we are saying, she is right. We do not think it is a good idea that the Government controls policing. That is why so many people thought the idea of putting in place an independent police authority was a good one. It would go some way towards taking policing out of total Government control. Sadly, that is not what is happening. Policing is going to remain in total Government control. The authority is being given weak powers to make it look as if there is a buffer between the Government and the Garda Síochána. However, it is so toothless that it is only going to complicate matters. The Government is also going to make all the appointments to this board. Even if it were not, it is giving it so little power. It is a bit like the GSOC issue.

GSOC was designed to fail and this non-independent policing authority is also designed to fail.

2:20 pm

Photo of Clare DalyClare Daly (Dublin North, United Left)
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The Minister of State is again quoting the Attorney General. As Deputy Wallace stated, we have read the Fennelly report. I would not be too keen on quoting the Attorney General at any length. In any case, we would like to see any opinion the Attorney General had because the references to this area in the Constitution are quite limited. It does not get away from the issue that, if the Minister is saying that the only reason she must retain the power is because of the Constitution, surely it should have dawned on the Government that it should have gone to the people and looked to change the Constitution.

We must look at the context of this. The Taoiseach is heading up a special justice sub-committee which has met nine times since it was set up because of the attention on policing matters. In the public domain, it is well known that policing is overtly politicised. The people have a huge yearning that things might be different but instead the Minister is hiding behind the Constitution to say the Government will keep control, and that is the problem we have with it. The Minister retains almost every power she had or a veto, approval or consent over the exercise of any shared power with the authority. Even in instances where we are nodding the head and saying the authority has a bit of a say, the Minister still has a veto. The authority has no power at all.

It is a complete row back from the heads of the Bill and it is disappointing when one compares it with the authorities in other states. Such authorities in other states consult the government, something we have no problem with, but those states do not allow the government to have a veto, which is the kernel of a politicised police force and the reason we wanted to bring in these changes. The appointments process is being openly retained by the Government. Regarding the Commissioner and the deputy, it is very disappointing. Regarding the powers of the authority to appoint the assistant commissioners, chief superintendents and superintendents, which are only subject to regulations which exist, it is deceptive. We would say the Minister is changing nothing in this, except making it more complex, more confusing and less accountable.

Photo of Pádraig MacLochlainnPádraig MacLochlainn (Donegal North East, Sinn Fein)
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I would add that gardaí themselves, through the Garda Representative Association and the Association of Garda Sergeants and Inspectors, AGSI, have stated repeatedly that they want politics removed from policing. It is not only the public who wants this following the episodes and the failure of the Department of Justice and Equality and Ministers to oversee An Garda Síochána adequately. Gardaí themselves want this.

It has not been a good period for the Attorney General. In terms of the advice given in this matter, one may interpret that the Government has an executive responsibility in terms of security matters but to stretch it to all policing matters is an interesting interpretation of the Constitution. An examination of the legal status of both individual gardaí and the Commissioner presents problems with fulfilling their functions within Article 28. Gardaí have wide and discretionary powers to interfere with constitutional rights and they cannot be directed when and how to use those powers. The function of the Commissioner is defined as directing and controlling An Garda Síochána and advising the Minister on policing and security matters. Ministers have repeatedly declined to accept responsibility for decisions of the Commissioner as policies and practices are for the Commissioner to decide. The Minister's role is to hold the Commissioner to account for performing these functions, not to have a hand in how they perform them. Given the legal status of the Commissioner, the Minister and individual gardaí, it is difficult to conclude that policing is an executive function.

I would like to see the Attorney General's advice in this matter. Whatever argument one can make about security matters, and we need a separate policing and security apparatus in this State given that we have a unique situation where they are combined, it is a remarkable interpretation of the Constitution to stretch it to all policing matters as an executive function of Government. Few academic legal experts, certainly, in the policing arena, would agree with that assessment. It is remarkable.

As Deputy Clare Daly stated, if the Minister was determined to separate politics and government from policing and this was her advice from the Attorney General, why did she not put this to a referendum? The Government has held referendums on much less important matters in recent years.

Photo of Ann PhelanAnn Phelan (Carlow-Kilkenny, Labour)
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The core point, which has been articulated widely in both Houses, is that there are limits to the extent to which the executive power of the State in relation to policing can be delegated. While the position is not being accepted by the Deputies, the legal advice provided by the Attorney General is clear. The Bill has been developed taking into account the constitutional position. In short, the Executive cannot remove itself from its responsibilities in relation to policing.

Photo of Seán BarrettSeán Barrett (Ceann Comhairle; Dún Laoghaire, Ceann Comhairle)
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Can I put the question?

Photo of Mick WallaceMick Wallace (Wexford, Independent)
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Am I entitled to the final contribution?

Photo of Seán BarrettSeán Barrett (Ceann Comhairle; Dún Laoghaire, Ceann Comhairle)
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Yes.

Photo of Mick WallaceMick Wallace (Wexford, Independent)
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First, in reply to the Minister of State's last comment, given the considerable importance of this area, to which Deputy Mac Lochlainn referred, if the Constitution is preventing the Government from doing right in relation to policing, let us fix the Constitution and put the necessary issues to the people with a view to changing them in order that we can conduct policing better. It is a considerable challenge and we need to do it better. It is imperative that we address the obstacles that may lie in the Constitution.

The majority of this crazy bunch of amendments, numbering 74 in total, are under Part 2 dealing with the personnel and organisation of the Garda Síochána. The two main sections deal with appointments and a code of ethics. I have spoken on the appointments section. With regard to the code of ethics, as we mentioned, under the 2005 Act, as amended, section 17 sets out that the Minister shall establish by regulation a code of ethics, including conduct and practice, for members of An Garda Síochána following consultation with the Commissioner, who prepares a draft code, and following consultation with bodies, such as the Ombudsman and the Irish Human Rights Commission, and having regard to European standards. Neither this Minister nor any other Minister since 2005 has done this.

The Government came to office in 2011 and stated it would do things differently. It was a significant lapse of responsibility on the part of the previous Government that it did not address this issue. The current Government was going to do things differently and was going to be the coalition of reform. How was this completely ignored again for the best part of five years?

The 2007 discipline regulations set out that a breach of any code of ethics, if one existed, would be a breach of discipline and dealt with it in accordance with the procedures thereunder. The Garda Síochána (Amendment) (No. 2) Bill 2014 we introduced proposed that the board and the Commissioner would be responsible for the drafting of the code of ethics for the Minister to establish by regulation with the approval of the board and that a code of service would be drawn up setting out standards of efficiency and service the public could expect from gardaí. Our Bill also inserted new sections 17A and 17B setting out that all Garda codes be published - another significant challenge that has gone ignored.

The Minister's Bill proposes that the authority shall, within 12 months, establish a code of ethics that includes standards of conduct and practice for members and internal whistleblowing provisions. However, the authority is obliged to consult more bodies than the Minister would have had to if she had ever drafted the code of ethics. For example, the authority will have to consult the Garda unions whereas the Minister would not have had to under the 2005 Act. The authority also has to consult the Minister for Justice and Equality and the Minister for Public Expenditure and Reform. In addition to European policing standards, the authority must also have regard to the policing principles when drafting the code of ethics.

The clause that provides that a breach of the code of ethics is a breach of discipline, which was in the heads of the Bill published last autumn, is not in the final Bill. The code of ethics as guidance for gardaí in carrying out their functions was included in very important new policing principles and has been removed from policing principles. The 2007 discipline regulations ensure that a breach of the code of ethics, if it existed, would be a breach of discipline. However, the regulations are only secondary legislation and can be revoked at any point by the Minister. Regulations, when drafted or revoked, never come before the House for debate, but come under the exercise of the Minister's executive power.

The 2007 discipline regulations were made pursuant to section 123 of the 2005 Act, and the Bill proposes to remove section 123(2)(b), which allows the Minister to make discipline regulations that relate to failure to comply with the provisions of the code of ethics under section 17. The removal of section 123(2)(b) was not proposed in the draft heads. The draft heads set out that a breach of the code of ethics would be a breach of discipline. This is another serious and underhand row-back on what was promised. This would be obvious only after a very detailed examination of the legislation and the Minister has not mentioned it in any of her press releases or radio interviews, in which she has made much of the code of ethics for which the authority will be responsible.

Once the Bill has been passed, the reference to a breach of the code of ethics being a breach of discipline, set out in the 2007 regulations, will no longer be lawful. It will no longer be legitimised by the parent Act, given that the relevant section 123(2)(b) will have been deleted. It is a major failing of the legislation. While the authority will introduce a code of ethics with great fanfare, breaching it will not be a breach of discipline, due to changes in the Act. The fact that there will be no sanctions for breaching the code will make it meaningless.

We have made many of the points. We have prepared commentary on every amendment we have tabled. I could go through them all, but it is hard to have the will sometimes. We are just so disappointed. We have put much work into this, as has Deputy Mac Lochlainn. It beggars belief that the Government has had such a poor approach to it. All the talk about real reform and doing things differently in policing was the talk of the day 18 months ago. The Government agreed there were problems in policing and said it would address them and it could not be left as it was. However, we are getting more of the same.

Amendment put:

The Dáil divided: Tá, 26; Níl, 58.


Tellers: Tá, Deputies Mick Wallace and Clare Daly; Níl, Deputies Joe Carey and John Lyons.

Amendment declared lost.

2:35 pm

Photo of Pádraig MacLochlainnPádraig MacLochlainn (Donegal North East, Sinn Fein)
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I move amendment No. 9:

In page 8, lines 7 and 8, to delete "shall, upon the nomination of the Authority, be made by the Government" and substitute "shall be made by the Authority".

Amendment put:

The Dáil divided: Tá, 26; Níl, 57.


Tellers: Tá, Deputies Aengus Ó Snodaigh and Pádraig Mac Lochlainn; Níl, Deputies Joe Carey and John Lyons.

Amendment declared lost.

2:45 pm

Photo of Pádraig MacLochlainnPádraig MacLochlainn (Donegal North East, Sinn Fein)
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I move amendment No. 10:

In page 8, line 9, to delete “nominate” and substitute “appoint”.

Amendment put:

The Dáil divided: Tá, 28; Níl, 56.


Tellers: Tá, Deputies Aengus Ó Snodaigh and Pádraig Mac Lochlainn; Níl, Deputies Joe Carey and John Lyons.

Amendment declared lost.

2:50 pm

Photo of Pádraig MacLochlainnPádraig MacLochlainn (Donegal North East, Sinn Fein)
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I move amendment No. 11:

In page 8, line 10, to delete ", with the prior approval in writing of the Government,".

Amendment put:

The Dáil divided: Tá, 24; Níl, 56.


Tellers: Tá, Deputies Aengus Ó Snodaigh and Pádraig Mac Lochlainn; Níl, Deputies Joe Carey and John Lyons.

Amendment declared lost.

Photo of Pádraig MacLochlainnPádraig MacLochlainn (Donegal North East, Sinn Fein)
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I move amendment No. 12:

In page 8, line 13, to delete ", with the approval of the Minister,".

Amendment put:

The Dáil divided: Tá, 23; Níl, 56.


Tellers: Tá, Deputies Aengus Ó Snodaigh and Pádraig Mac Lochlainn; Níl, Deputies Joe Carey and John Lyons.

Amendment declared lost.

3:00 pm

Photo of Pádraig MacLochlainnPádraig MacLochlainn (Donegal North East, Sinn Fein)
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I move amendment No. 13:

In page 8, line 17, to delete “nominated” and substitute “appointed”.

Amendment put:

The Dáil divided: Tá, 23; Níl, 52.


Tellers: Tá, Deputies Aengus Ó Snodaigh and Pádraig Mac Lochlainn; Níl, Deputies Joe Carey and John Lyons.

Amendment declared lost.

3:05 pm

Photo of Clare DalyClare Daly (Dublin North, United Left)
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I move amendment No. 14:

In page 8, line 25, to delete "for nomination by" and substitute "to".

Amendment put:

The Dáil divided: Tá, 25; Níl, 52.


Tellers: Tá, Deputies Clare Daly and Mick Wallace; Níl, Deputies Joe Carey and John Lyons.

Amendment declared lost.

3:10 pm

Photo of Pádraig MacLochlainnPádraig MacLochlainn (Donegal North East, Sinn Fein)
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I move amendment No. 15:

In page 8, line 25, to delete “nomination” and substitute “appointment”.

Amendment put:

The Dáil divided: Tá, 21; Níl, 53.


Tellers: Tá, Deputies Aengus Ó Snodaigh and Pádraig Mac Lochlainn; Níl, Deputies Joe Carey and John Lyons.

Amendment declared lost.

Photo of Pádraig MacLochlainnPádraig MacLochlainn (Donegal North East, Sinn Fein)
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I move amendment No. 16:

In page 8, lines 25 and 26, to delete “for appointment”.

Amendment put:

The Dáil divided: Tá, 22; Níl, 54.


Tellers: Tá, Deputies Aengus Ó Snodaigh and Pádraig Mac Lochlainn; Níl, Deputies Joe Carey and John Lyons.

Amendment declared lost.

3:20 pm

Photo of Mick WallaceMick Wallace (Wexford, Independent)
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I move amendment No. 17:

In page 8, to delete lines 27 to 41.

Amendment put:

The Dáil divided: Tá, 23; Níl, 54.


Tellers: Tá, Deputies Clare Daly and Mick Wallace; Níl, Deputies Joe Carey and John Lyons.

Amendment declared lost.

3:25 pm

Photo of Mick WallaceMick Wallace (Wexford, Independent)
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I move amendment No. 18:

In page 9, line 2, to delete “Minister” and substitute “Authority”.

Amendment put:

The Dáil divided: Tá, 26; Níl, 53.


Tellers: Tá, Deputies Clare Daly and Mick Wallace; Níl, Deputies Joe Carey and John Lyons.

Amendment declared lost.

Photo of Mick WallaceMick Wallace (Wexford, Independent)
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I move amendment No. 19:

In page 9, line 3, to delete “Minister” and substitute “Authority”.

Amendment put:

The Dáil divided: Tá, 25; Níl, 56.


Tellers: Tá, Deputies Clare Daly and Mick Wallace; Níl, Deputies Joe Carey and John Lyons.

Amendment declared lost.

3:35 pm

Photo of Mick WallaceMick Wallace (Wexford, Independent)
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I move amendment No. 20:

In page 9, line 4, to delete “Minister” and substitute “Authority”.

Amendment put:

The Dáil divided: Tá, 23; Níl, 56.


Tellers: Tá, Deputies Clare Daly and Mick Wallace; Níl, Deputies Joe Carey and John Lyons.

Amendment declared lost.

Photo of Alan ShatterAlan Shatter (Dublin South, Fine Gael)
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On a point of order, this would be impressive had a single member of Sinn Féin or Fianna Fáil turned up on Committee Stage to propose and debate the amendments that were tabled.

Photo of Aengus Ó SnodaighAengus Ó Snodaigh (Dublin South Central, Sinn Fein)
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That is not a point of order.

Photo of Billy KelleherBilly Kelleher (Cork North Central, Fianna Fail)
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That is not a point of order.

Photo of Pádraig MacLochlainnPádraig MacLochlainn (Donegal North East, Sinn Fein)
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On a point of order-----

(Interruptions).

Photo of Alan ShatterAlan Shatter (Dublin South, Fine Gael)
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It would also be impressive if Deputy Wallace had turned up at the start of Committee Stage as well. I would like to propose an amendment to the Order of Business at this point.

Photo of Sandra McLellanSandra McLellan (Cork East, Sinn Fein)
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The Deputy cannot do so.

Photo of Aengus Ó SnodaighAengus Ó Snodaigh (Dublin South Central, Sinn Fein)
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We dealt with the Order of Business this morning.

Photo of Michael KittMichael Kitt (Galway East, Fianna Fail)
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I do not think you can.

Photo of Alan ShatterAlan Shatter (Dublin South, Fine Gael)
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I would like to propose an amendment to the Order of Business to the effect that the amendments discussed in this group all be considered in a single vote and that we bring this complete farce to an end.

3:40 pm

Photo of Michael KittMichael Kitt (Galway East, Fianna Fail)
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I do not think the Deputy is in a position to do so.

Photo of Sandra McLellanSandra McLellan (Cork East, Sinn Fein)
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The Deputy cannot do so.

Photo of Aengus Ó SnodaighAengus Ó Snodaigh (Dublin South Central, Sinn Fein)
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The biggest farce here is the one standing up opposite me.

Photo of Alan ShatterAlan Shatter (Dublin South, Fine Gael)
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Are the Members opposite seriously going to go before the electorate and present themselves as an alternative Government? The House has been dividing for over an hour in respect of votes on amendments those opposite know they cannot win.

Photo of Michael KittMichael Kitt (Galway East, Fianna Fail)
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Sorry Deputy-----

Photo of Pádraig MacLochlainnPádraig MacLochlainn (Donegal North East, Sinn Fein)
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The Deputy is not a Minister any more. I want to respond. On a point of order, I want to correct the record.

Photo of Jerry ButtimerJerry Buttimer (Cork South Central, Fine Gael)
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We want to say something here.

Photo of Michael KittMichael Kitt (Galway East, Fianna Fail)
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Very briefly, because I want to say something too.

Photo of Pádraig MacLochlainnPádraig MacLochlainn (Donegal North East, Sinn Fein)
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Here are the facts-----

Photo of Dara MurphyDara Murphy (Cork North Central, Fine Gael)
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As the Deputy sese them.

Photo of Michael KittMichael Kitt (Galway East, Fianna Fail)
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Briefly.

Photo of Pádraig MacLochlainnPádraig MacLochlainn (Donegal North East, Sinn Fein)
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Committee Stage was taken over two days. This is the second day of Report Stage. This amounts to four separate days for debate. The Minister for Justice and Equality has not been present once during those four days. The former Minister for Justice and Equality should get off his high horse and realise that in a democracy, when the Government has the contempt whereby the Minister does not show up during the four days when debate was scheduled, we have a right - if the Government refuses to engage - to call a vote on every amendment.

Photo of Ann PhelanAnn Phelan (Carlow-Kilkenny, Labour)
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I second Deputy Shatter's proposal.

Photo of Michael KittMichael Kitt (Galway East, Fianna Fail)
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I must move on to the next amendment. I cannot accept the proposal because it must come from the Government Chief Whip.

Photo of Billy KelleherBilly Kelleher (Cork North Central, Fianna Fail)
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It has to come from the Government and Deputy Shatter is a backbencher.

Photo of Mattie McGrathMattie McGrath (Tipperary South, Independent)
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He wrecked the Department of Justice and Equality and starved the Garda of any money. The force did not have a squad car, a radio or a battery.

Photo of Ray ButlerRay Butler (Meath West, Fine Gael)
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The Deputy can get good advice when he is Minister for Justice and Equality.

Photo of Mick WallaceMick Wallace (Wexford, Independent)
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I move amendment No. 21:

In page 9, line 6, to delete "The Government shall, as soon as may be, inform the Authority" and substitute "The Authority shall, as soon as may be, inform the Government".

Amendment put:

The Dáil divided: Tá, 23; Níl, 57.


Tellers: Tá, Deputies Clare Daly and Mick Wallace; Níl, Deputies Joe Carey and John Lyons.

Amendment declared lost.

3:50 pm

Photo of Mick WallaceMick Wallace (Wexford, Independent)
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I move amendment No. 22:

In page 9, to delete lines 15 to 32 and the substitute the following:“ “10.(1)The Authority, following consultation with the Government, may determine the number of persons who may be appointed to the rank of Deputy Garda Commissioner and, subject to this section, the appointment of a person to that rank shall be made by the Authority following consultation with the Government.

(2) The Authority shall not appoint a person under subsection (1) unless it has invited the Service to undertake a selection competition for that purpose and the Service has undertaken such a competition.

(3) The Authority shall agree with the Service the selection criteria and process that are to apply to the selection competition under this section.

(4) A person shall not be appointed by the Authority under subsection (1) unless it is satisfied that the person is suitable for appointment as Deputy Garda Commissioner by reason of his or her possessing such relevant experience, qualifications, training or expertise as is appropriate having regard, in particular, to the functions that may be assigned to a member of this rank.”

Photo of Alan ShatterAlan Shatter (Dublin South, Fine Gael)
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On a point of order-----

Photo of Dessie EllisDessie Ellis (Dublin North West, Sinn Fein)
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Do not make even more of a mess. He made a mess of the Bill.

Photo of John LyonsJohn Lyons (Dublin North West, Labour)
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Let him speak.

Photo of Alan ShatterAlan Shatter (Dublin South, Fine Gael)
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I made no mess. It is a farce. We will cover it eventually.

Amendment put:

The Dáil divided: Tá, 25; Níl, 54.


Tellers: Tá, Deputies Clare Daly and Mick Wallace; Níl, Deputies Joe Carey and John Lyons.

Amendment declared lost.

Debate adjourned.