Wednesday, 12 July 2023
Policing, Security and Community Safety Bill 2023: Report and Final Stages
I move amendment No .1:
In page 17, lines 8 and 9, to delete “or, in the English language, the Board of An Garda Síochána”.
I will speak on amendment No. 1 and all other ministerial amendments in this grouping. I also note amendment No. 11 from Deputies Daly and Ó Snodaigh is included in this grouping.
These amendments provide for the naming of bodies established by the Bill in the Irish language only and any other necessary consequential amendments. As Deputies will be aware, on Committee Stage, the then Minister, Deputy Harris, indicated he would consider the naming of the bodies to be established by the Bill in light of the Official Languages (Amendment) Act of 2021. While not yet commenced, section 5 of the Act provides that bodies established on and after commencement will be named in the Irish language only. Notwithstanding that the section has not been commenced, I propose to provide for the naming of the bodies in the Irish language only.
This is in line with the 2021 Act and will help increase the role and visibility of the Irish language in public life. Deputies will note that the Office of the Police Ombudsman in Irish is not included in these amendments. That is because I am considering the name of this body more generally. It is something I will return to in the Seanad.
The effect of amendment No. 11 will be twofold. First, the titles of all bodies established under the Act will be in the Irish language only. As outlined before, I support that. Second, the titles of all officers established by this Act along with the ranks of members of An Garda Síochána would also be in Irish. That is not something I am supporting. It goes beyond the obligations contained in the Official Languages (Amendment) Act that all logos are in Irish or Irish and English. The Act is the correct authority to follow here and I do not propose to go beyond that. Such titles for Garda ranks exist in the Irish language, are used by members at their own discretion and I do not think it is necessary to set this on a statutory footing. Therefore, I will not support the amendment. I will, however, support the naming of all the different independent bodies.
Gabhaim buíochas leis an Aire. Cuirim fáilte roimh an gcinneadh atá glactha maidir le hainmniú na n-eagras difriúil faoin Acht seo. I welcome the decision by the Minister to adopt the proposals I have put forward in amendments to try to ensure that the titles of public bodies under the legislation would be in Irish only. That is reflected in the Minister’s amendments. I acknowledge what she has said with the exception of An tOmbudsman Póilíneachta and that she will look at that title in future after the body is fully established.
Níl a fhios agam cén fáth nár glacadh leis an leasú atá agam féin, Uimh. 11, a bhaineann le teidil na ndaoine difriúla atá ag obair sa Gharda, sáirsintí agus an Coimisinéir féin ina measc. Of course members of An Garda Síochána can call themselves whatever they want and acknowledge the rank that different officers hold on a one-to-one basis, but in official documents the titles should reflect the spirit of the Official Languages Act. We should start the practice of ensuring that happens. It is a pity that the Minister does not intend to accept the amendment. I say to her "Well done" on the others.
I move amendment No. 2:
In page 17, line 16, to delete “body” and substitute “group”.
Amendment No. 2 is a technical amendment to amend the Long Title to refer to an grúpa stiúrtha náisiúnta um shábháilteacht pobail or the national community safety steering group as a group rather than a body which is the term used in the legislation.
Amendment No. 6 is a technical amendment to amend the Long Title to correct an incorrect capitalisation of “oifig” in oifig an Scrúdaitheora Neamhspleách um Reachtaíocht Slándála.
Amendment No. 14 relates to section 16. Section 16(3) currently lists a number of matters in which persons recommend for appointment as members of the new Garda board is required to have sufficient expertise and experience. These are: the functions of An Garda Síochána; organisational governance, management or public administration; and financial matters. The current wording could be construed as meaning that a person cannot be recommended for appointment unless they have expertise in all these matters. That is not the intention. The proposed amendment replaces the word “with” with the term “with one or more of” which addresses this issue.
Amendment No. 35 is a technical in nature. Its purpose is to amend an incorrect reference to the authority in lowercase.
Amendment No. 44 relates to section 194 which requires the Police Ombudsman to determine the admissibility of complaints received directly by the Police Ombudsman or referred by An Garda Síochána. The amendment is to subsection (7), which confirms that complaints regarding members of Garda personnel who are no longer members, who have retired or who have resigned from An Garda Síochána are not automatically inadmissible. The definition of members of Garda personnel captures both sworn members and members of Garda staff. This amendment replaces the current reference to “a member” with “such a member” clarifying that the member referred to is a member of Garda personnel and not a reference to an actual member of An Garda Síochána which does not include members of Garda staff.
I move amendment No. 8:
In page 22, between lines 3 and 4, to insert the following:
“(3) A reference in this Act—(a) to the policing priorities shall, where the context admits, be construed as including a reference to the priorities relating to policing services determined by the Policing Authority (within the meaning of Part 4) under section 20 of the Act of 2005 that were in operation immediately before the repeal of that section by section 5, until such time as the Authority determines policing priorities,
(b) to the security priorities shall, where the context admits, be construed as including a reference to the priorities relating to security services determined by the Minister under section 20A of the Act of 2005 that were in operation immediately before the repeal of that section by section 5, until such time as the Minister determines security priorities, (c) to the strategic plan as laid under section 64(1) shall, where the context admits, be construed as including a reference to the strategy statement prepared under section 21 of the Act of 2005 that was in operation immediately before the repeal of that section by section 5, until such time as the strategic plan is so laid,
(d)to the annual service plan as laid under section 65(12) or 66(10) shall, where the context admits, be construed as including a reference to the policing plan prepared under section 22 of the Act of 2005 that was in operation immediately before the repeal of that section by section 5, until such time as the annual service plan is so laid, (e) to the capital plan as laid under section 69(1) shall, where the context admits, be construed as including a reference to such plan for capital expenditure for An Garda Síochána that was in operation immediately before the coming into operation of that section, until such time as the capital plan is so laid, and
(f) to a code of ethics issued by the Authority under section 78 shall, where the context admits, be construed as including a reference to the code established by the Policing Authority (within the meaning of Part 4) under section 17 of the Act of 2005 in so far as the latter was operative immediately before the repeal of that section by section 5 until such time as a code of ethics is so issued.”.
Amendment No. 8 is technical in nature. Its purpose is to bridge the gap between the Government’s obligations under the Garda Síochána Act 2005 and those in the Bill. The Bill will fully repeal the Garda Síochána Act 2005. It will provide for the preparation of policing priorities, security priorities and a strategic plan, a capital plan, an annual service plan and a code of ethics for An Garda Síochána. However, there will be a period following the repeal of the 2005 Act and before the preparation of such priorities and plans under the Bill when the existing documents made under the 2005 Act will need to remain in force. The amendment ensures that prior to such preparation references in the Bill to priorities and plans are understood to include their equivalents under the 2005 Act.
The grouping also includes a consequential amendment, No. 23, to delete subsection 9 of section 78 given that it is now provided for under this particular new subsection.
I move amendment No. 9:
In page 22, after line 38, to insert the following:“(5) Nothing in this section—
(a) confers on a member of garda personnel a power that he or she does not otherwise have by virtue of another enactment or at common law,
(b) authorises a member of garda personnel to exercise a power conferred by law for a purpose that is not so authorised.”.
I understand that this was debated on Committee Stage. I am here in place of Deputy Ó Ríordáin, who cannot be here for family reasons. This section sets out a definition of what security services are. The amendment is concerned with the difference between a function and a power. Deputy Ó Ríordáin went through this on Committee Stage. An Garda Síochána at a core has a policing function and a security function but individual members are vested by law with a range of specific powers which they exercise and discharge of a specific function. In relation to the Road Traffic Act, gardaí have particular powers to stop vehicles in order to take breath tests and so on. That is understood. The powers are exercised for the purposes spelled out in the particular statute or statutes, as in the example I gave of the Road Traffic Acts. What does it mean to say An Garda Síochána has a function, for example, identifying a security issue such as foreign capabilities? What powers does a garda have when exercising a security function? I want to make it clear that a garda acting in a security capacity does not have the powers conferred under other statues to do things that would be understood to be necessary in the criminal court to do normal policing under criminal Acts. I hope I am making myself reasonably clear. As this matter was highlighted by previously by Deputy Ó Ríordáin, the Minister will understand the import of the amendment.
This is a complex matter. Section 3 defines security services. The amendment provides that nothing in section 3 would authorise a member of An Garda to exercise a power conferred by law for a purpose that is not so authorised.
An Garda Síochána only has powers that are provided for in any number of Acts or in common law. That does not change because of this section, which simply defines security services. There is a slight amendment to the definition whereby we include "Acts contrary to the economic well-being of the State where such Acts have an impact on national security". Again, that does not impact the powers of An Garda Síochána. That is provided for in separate legislation. If there is - and this is in the Bill - a question over whether or not a power is a relevant power for An Garda Síochána, particularly when it relates to security services or security issues, a separate item of the legislation will allow for the office of the independent examiner to identify whether or not it is a role or a matter for An Garda Síochána and to present that then to the Minister, who then decides. There is a function here whereby if there is a question over whether or not a power that is conferred in separate Acts - as I said, not in this section but in police powers and other Acts - is or should be a security matter - for example, if a garda is being questioned by the authority or in a public arena and says, "I cannot provide you with that information for security reasons" - it will then be open to the office of the examiner to decide whether or not that is the case and to make a case to the Minister, and the Minister then decides. This section does not allow for any new power or change in powers related to security services or security matters. It is simply a definition, as I said, which provides an expansion in a certain way, but the expansion as regards economic well-being does not confer any additional power. It is for that reason that I do not think the amendment is necessary. It is clear that this is part of separate legislation where the powers are conferred on gardaí.
That is very helpful for my understanding of this. What we are trying to make clear is that vesting the Garda with a function does not mean that the powers of, say, surveillance or interception conferred in other enactments automatically become available to the member of An Garda Síochána in the performance of this particular function. For crystal clarity, there is security legislation and there are powers, for example, to deal with sabotage and so on available to An Garda Síochána specifically for that purpose, but as regards operating in the security space, under this legislation, under this definition in this section, no additional powers are being conferred on gardaí unless they are specifically available in another enactment. Is that what the Minister is telling me?
-----and to recommend changes where necessary, but the Bill absolutely does not make the changes that I think it was thought it makes. That is why the amendment has been put forward, but I am satisfied that it is not required.
I move amendment No. 10:
In page 23, to delete line 6 and substitute the following: “(i) independently, impartially and in accordance with law,”.
I understand there was some debate on Committee Stage between the then Minister, Deputy Harris, and Deputy Ó Ríordáin on this. It seems to me that it is self-evident that these words would be required. My understanding is that the Minister's answer at the time was that they are already implicit, but why not for the avoidance of doubt - we had this on a different issue - insert them into the Bill in order that we can be crystal clear, in line with policing principles, that gardaí would act "independently, impartially and in accordance with law"?
-----about a particular piece and why it was not included in the legislation.
When it comes to ensuring that all public bodies carry out their legal obligations in accordance with the law, this principle is so paramount that I think it goes without saying. In addition, if it is to be included in this legislation, the question is raised - if it is not included in all other legislation - as to whether that then implies that it does not apply in those instances. It is a constitutional principle that these bodies and members of An Garda Síochána must carry out their work in compliance with the law. That must be a given without it being expressly stated. I will have the pleasure in, I think, two weeks' time of attending an attestation in Templemore at which individual members will themselves state this when being attested. There is a new provision here under section 4(e) that "every member ... is required to act professionally, ethically, with integrity and in a manner that protects and vindicates human rights". These are progressive and inclusive changes which will shape and support the work of An Garda Síochána and are in addition to words that are stated by newer members, who say they will uphold and ensure that all their work will be essentially in accordance with law. Members individually state that when they join An Garda Síochána. It is a constitutional principle. All public bodies are required to carry out their legal obligations in accordance with the law, and I do not think it is necessary to put it in this Bill.
As the Minister rightly stated, we have rehearsed this previously. The position is that something that is self-evident does not need to be stated and that if it is stated, it needs to be replicated everywhere. I am not sure I agree with that. In a Bill as fundamentally important as this, to state that members will act "independently, impartially and in accordance with law" is obviously a clearly understood principle, but it should be a stated principle. Even if it is part of the attestation made by gardaí when they graduate from Garda college, that is not a legal requirement, I presume. To break it is not a legal matter. This would be a matter of law, so anybody reading it would understand that it is there. I will not labour the matter any further, but I think it would improve the Bill to have such fundamental issues crystalised and set out in clear legislation.
I move amendment No. 11:
In page 23, between lines 25 and 26, to insert the following: “Language
7.Following the commencement of this Act, all titles of bodies or officers of those bodies established in this Act, including ranks of members of An Garda Síochána, shall, for official purposes, be referred to in the Irish language only.”.
I move amendment No. 15:
In page 42, between lines 15 and 16, to insert the following: “(3) Where a person fails or refuses to comply with, or disobeys, a summons to attend or other direction under subsection (1), the High Court may, on application by the appointed judge concerned and on notice to the person—(a) order the person to comply with the direction or, in the case of a summons, to attend before the appointed judge, and(4) A person who—
(b) make such other order (if any) as it considers necessary and just to enable the direction to have full effect or, in the case of a summons, to ensure the attendance before the appointed judge.(a) on being summoned to attend before an appointed judge for the purpose of an inquiry under section 31(3)(a), fails to attend,is guilty of an offence and is liable on summary conviction to a class C fine or to imprisonment for a term not exceeding 6 months, or both.”.
(b) in attendance as a witness for such a purpose—(i) refuses to take an oath lawfully required by the appointed judge to be taken,
(ii) refuses to produce any document in his or her power or control lawfully required by the appointed judge to be produced by him or her,
(iii) refuses to answer any question to which the appointed judge may lawfully require an answer, or
(iv) does anything which, if the appointed judge were a judge of the High Court hearing an action, would be contempt of that court,
This pertains to inquiries under section 31(3)(a), which, in essence, relates to the removal of a Garda Commissioner. It is an inquiry that would be chaired by a High Court judge. The amendment we table here is to provide for a procedure where a person refuses to co-operate with such an inquiry under this section. The then Minister's presentation, as I understood it, was that because the person conducting the inquiry is a judge of the High Court, he or she will have ample powers to deal with non-co-operation, including powers to commit for a contempt of court.
I am advised - I am not a lawyer, but I am surrounded by them - that a judge has the power to commit for a contempt of court where the judge is sitting in a court of law. A judge cannot exercise such powers when he or she is not sitting in a court of law, for example, when chairing a tribunal of inquiry or sitting in any other capacity. There is nothing in section 32 to suggest that an inquiry under this section is a judicial proceeding. I do not expect the Minister believes it is a judicial proceeding carried out by and in a court of law. In that case, my advice is that the judge conducting such an inquiry will not have the contempt of court powers and, should a witness not co-operate by presenting himself or herself or producing documents, there would be no remedial powers available to the chairperson, who happens to be a High Court judge, to deal with such non-compliance. It is to remedy this that we are replicating sections already in the Bill in respect of other circumstances. I ask the Minister to address this issue. How does she envisage that the chairperson of an inquiry under section 31(3)(a) will deal with non-co-operation without having the powers of contempt that she believes are available to a judge sitting in that capacity?
The Deputy has outlined the position that the then Minister gave on Committee Stage. The position has not changed. My understanding is that, under the relevant provision, an appointed judge may conduct the inquiry in the manner he or she believes is proper and will have the powers, rights and privileges vested in a judge of the High Court. It is expressly stated that the judge will be a judge of a superior court, meaning the High Court, the Court of Appeal or higher. The Attorney General has advised that he believes that the powers are appropriate in this context and there is no need for the express powers outlined in this amendment, as they are already available to the judge appointed in this instance.
I have rechecked this point because the then Minister, Deputy Harris, made that argument on Committee Stage to my colleague. I am empathically advised that because someone is a High Court judge does not mean that he or she has contempt of court powers unless he or she is sitting as a judge in a court with a court registrar in front of him or her. If the judge is sitting in a tribunal of inquiry or at Doheny & Nesbitt, he or she does not have compellability powers. That is the clear advice I have been given, but the Minister is implying that, simply because the person happens to be a judge, those powers are available to him or her in whatever function he or she is performing. Is that the Minister’s contention? It is not what I understand to be the case.
This is the advice that has been given to me. An appointed judge may conduct the inquiry in the manner he or she feels is proper and he or she will have those powers. Obviously, this Bill has to go through a number of Stages, so I will commit to triple-checking. Following the discussion on Committee Stage, the advice given to me by the Attorney General is that the judge will have those powers, but I will explore this matter and ensure that it is the case.
I thank the Minister. For clarity, I take it that she does not envisage that such an inquiry would be a judicial inquiry, in other words, like a court in and of itself. It would change my perception if the Minister was saying that it would be a legal proceeding as a court and the judge was sitting as a judge in a court when determining these matters.
If the judge is not sitting as a judge and does not have a court registrar in front of him or her, my clear advice is that the judge does not have compellability powers. However, the Minister can check that and revert to us.
I move amendment No. 18:
In page 44, to delete lines 31 and 32.
This relates to the requirement on the Garda Commissioner to provide information to the Minister. I respectfully suggest that it tightens up the information that is to be provided to the Minister by the Commissioner. It needs to be tightened up because it is open to abuse, and I say that because it has been abused in the past. I have not been a Deputy for long and I am sure that someone like Deputy Howlin could point to many more abuses than I can, but I recall one of the Minister’s predecessors, Mr. Alan Shatter. He was actually one of the more reforming justice Ministers, and he should be acknowledged and heralded for that. It is not unfair to him or to Mr. Mick Wallace, then a Deputy and now an MEP, to suggest that they did not have the cosiest relationship in the world. They were on prime time television – I believe they were on "Prime Time" itself – one night and Mr. Wallace was criticising Government policy, as is the want of the Opposition, when Mr. Shatter said that Mr. Wallace had been stopped at the Five Lamps in Dublin. The Minister may know where the Five Lamps are. They are on the way to Croke Park. It is a while since either Clare or Meath were in an All-Ireland final, but both of us live in hope-----
Indeed, and we hope that the Clare ladies will be in an All-Ireland final too. Mr. Shatter was able to say that Mr. Wallace had committed, I believe, a road traffic offence at the Five Lamps and was pulled over. This was information he had gleaned from the then Garda Commissioner.
Equally worrying, or even more worrying in some respects, the House may recall that, in the lifetime of this Dáil and during Deputy McEntee’s tenure as Minister for Justice, the then Vice President of the European Commission attended a golf dinner of the Oireachtas Golf Society, as it was called, in Clifden. There was terrible consternation. A couple of journalists basically told the world they were Bob Woodward and Carl Bernstein for their efforts in unearthing the seating plan. All hell broke loose and the hysteria we are now seeing around RTÉ was in the ether. Nothing less than Mr. Phil Hogan’s head was going to satisfy the masses.
I do not always agree with the Minister for Transport, Deputy Eamon Ryan, but one of the few things I would agree with him on was how he desisted from calling for Mr. Hogan’s head. However, the leader of the party of which the Minister, Deputy McEntee, is a member, who was Tánaiste at the time, did call for his head. Fianna Fáil taoisigh are generally fair-minded, but the Tánaiste, who held the exalted position of Head of Government as Taoiseach at the time, called for Mr. Hogan’s head because we needed heads and heads were the only thing that would satiate the masses. We wanted Mr. Hogan’s head on a pole somewhere.
It then transpired that he had been apprehended for a road traffic offence. I do not mean to denigrate road traffic offences, as they can be very serious and every offence is, by definition, serious, but his offence was one of driving with a mobile phone in his hand. It was a serious offence, but one that did not threaten the security of the State. He was not apprehended with a bag of Kalashnikovs in his boot. It was with a mobile phone to his ear. There was no suggestion that he was going to overthrow the authority of the State or summon the people to him at Clifden golf course to overthrow the State and once and for all create a new state, be it the "State of Phil" or whatever. He was making a phone call. It was wrong and I am not condoning it.
I am not in the Cabinet, but I understand that this information made its way to the Minister, Deputy McEntee, and the Cabinet.
Of course, it greatly assisted the Taoiseach and the Tánaiste in solving their problem. They were bolstered by this information of an alleged offence that a Vice President of the Commission had carried out of driving with a mobile phone to his ear. This was dynamite. It was almost up there with the arms trial back in the day in terms of the amount of attention it attracted. Ursula von der Leyen, the President of the Commission, was written to. I say very squarely that this was an abuse of information. Abuses of information should not happen. The Minister has never explained how it happened. It needs to be explained. If it happens once it can happen twice. If it happens twice it can happen a lot of times. It has happened twice in my very brief period in here. I do not know how many abuses of such information there have been during my career. By the way, for the avoidance of any doubt, I am not suggesting that Deputy Howlin ever abused information that he obtained but it is open to abuse.
The Deputy has been here a long time and I am sure he has see a lot of abuse.
I did not think information should be provided willy-nilly. There is information that should be provided, and that is set out clearly. What the amendment does is remove any other matters that in the Commissioner's opinion should be brought to the Minister's attention. I asked the stand-in Minister for Justice whether he thought the infidelities of a Minister's spouse or partner should be brought to the Minister's attention if it came to the Commissioner's attention. There was a time in Ireland that it would not have made the media but it would now, and it certainly would in Britain. We have seen ministerial careers end for something like this. I do not think they should end, and I do not think it is anybody's business, but they do end. Is this information the Garda Commissioner should pass on? I am not suggesting that any Cabinet Minister or anybody's spouse or partner is being unfaithful. I am saying this is the kind of information that could be passed on because it is so broad that it is open to abuse and it has been abused.
What we are trying to legislate for here are potential unforeseen circumstances. We are trying not to be prescriptive in what the Commissioner may or may not deem as being necessary or relevant, and in what the Commissioner might feel is important to relate to the Minister of the day. This is the case with a lot of legislation, where we try not to be prescriptive because we do not know the scenarios or situations that may arise which are not covered. As Minister I do not want a situation to arise, particularly an emergency, where the Commissioner then has to refer to a set of rules to try to identify whether something fits to a particular section, subsection or category whereby he or she is allowed to engage with the Minister.
A lot of trust is placed in the Garda Commissioner in the legislation. It is important that we trust the person who is at the head of our policing service. I also believe there are a lot of checks and balances and oversight in the Bill. The Commissioner might say there is too much in terms of the role and the way in which the Commissioner must engage with the board and the authority. There will be an individual responsible for dealing with security. There will be the new GSOC, whatever title it will have. There will be a great deal of oversight in making sure the Commissioner carries out their functions to the best of their ability.
There is also professional discretion that must apply. We must not constrain what the Commissioner may or may not say if they feel it is appropriate and something the Minister must be made aware of. There were a lot of insinuations and assertions in what Deputy McNamara has suggested. I suggest that bad case do not make good law. We need to make sure the Commissioner's hands are not tied if they feel there is a matter of security or importance that must be brought to the Minister's attention. I do not think that by setting these parameters we could predict that they would cover all possible scenarios.
I thank the Cathaoirleach Gníomhach. There was no insinuation. There was a direct accusation that the Commissioner told the Minister that Phil Hogan had a mobile phone to his ear, that she brought it to Cabinet and that it helped to end his career at the European Commission. If there is oversight that would prevent it happening in future then show me where it is and I will be happy to consider withdrawing the amendment. That is an abuse. That is political policing. It is policing in a manner that advances the political agenda of the Government of the day and not the security of the State or the security of its citizens.
The prosecution of anybody who is apprehended with a mobile phone to their ear would advance security but that was not what this was about. As I understand it, there was not even a prosecution. That is not what this was about. This was about political policing. Political policing is very dangerous. The possibility of political policing is even more dangerous, especially if it to be legislated for. If there is something that precludes this happening again then show me where it is. If it is removed, as I propose, the Commissioner can still tell the policing authority in the case of an emergency and it can tell the Minister straight away but there is a filter. It is to stop the Commissioner telling the Minister of the day useful tittle-tattle. If there is nothing to prevent this, and it happened recently and happened before that, it will continue to happen if we legislate for it. I have a problem with that. I want the Minister to tell me what prevents this from happening, other than that we should trust the people who are exactly the same characters. It is the same Minister for Justice, namely, Deputy McEntee. It is the same Garda Commissioner, namely, Drew Harris. Should we trust them now when we could not trust them before?
I wholeheartedly reject any assertions or suggestions Deputy McNamara has made about this matter. I have clearly outlined why I will not be accepting the amendment. It is important that we do not tie the hands of the Commissioner if he or she feels it is important to bring forward information that is relevant to the Minister.
Chris Andrews, Mick Barry, Cathal Berry, Richard Boyd Barrett, John Brady, Martin Browne, Pat Buckley, Seán Canney, Matt Carthy, Sorca Clarke, Joan Collins, Michael Collins, Rose Conway-Walsh, Réada Cronin, Seán Crowe, Pa Daly, Pearse Doherty, Paul Donnelly, Dessie Ellis, Mairead Farrell, Peter Fitzpatrick, Kathleen Funchion, Gary Gannon, Thomas Gould, Johnny Guirke, Marian Harkin, Danny Healy-Rae, Gino Kenny, Claire Kerrane, Pádraig Mac Lochlainn, Mattie McGrath, Michael McNamara, Denise Mitchell, Imelda Munster, Catherine Murphy, Paul Murphy, Verona Murphy, Johnny Mythen, Denis Naughten, Carol Nolan, Cian O'Callaghan, Louise O'Reilly, Eoin Ó Broin, Donnchadh Ó Laoghaire, Ruairi Ó Murchú, Aengus Ó Snodaigh, Thomas Pringle, Maurice Quinlivan, Patricia Ryan, Róisín Shortall, Brian Stanley, Pauline Tully, Mark Ward, Jennifer Whitmore, Violet-Anne Wynne.
Colm Brophy, James Browne, Richard Bruton, Colm Burke, Peter Burke, Mary Butler, Thomas Byrne, Jackie Cahill, Dara Calleary, Ciarán Cannon, Jennifer Carroll MacNeill, Jack Chambers, Niall Collins, Patrick Costello, Simon Coveney, Barry Cowen, Michael Creed, Cathal Crowe, Cormac Devlin, Alan Dillon, Stephen Donnelly, Paschal Donohoe, Francis Noel Duffy, Bernard Durkan, Damien English, Alan Farrell, Frank Feighan, Joe Flaherty, Charles Flanagan, Seán Fleming, Norma Foley, Brendan Griffin, Simon Harris, Seán Haughey, Martin Heydon, Emer Higgins, Brendan Howlin, Heather Humphreys, Paul Kehoe, John Lahart, James Lawless, Brian Leddin, Josepha Madigan, Catherine Martin, Micheál Martin, Steven Matthews, Paul McAuliffe, Charlie McConalogue, Helen McEntee, Michael McGrath, John McGuinness, Joe McHugh, Aindrias Moynihan, Michael Moynihan, Jennifer Murnane O'Connor, Gerald Nash, Hildegarde Naughton, Malcolm Noonan, Darragh O'Brien, Joe O'Brien, Jim O'Callaghan, James O'Connor, Kieran O'Donnell, Fergus O'Dowd, Roderic O'Gorman, Christopher O'Sullivan, Pádraig O'Sullivan, Marc Ó Cathasaigh, Éamon Ó Cuív, John Paul Phelan, Anne Rabbitte, Neale Richmond, Eamon Ryan, Seán Sherlock, Brendan Smith, Duncan Smith, Niamh Smyth, Ossian Smyth, David Stanton, Robert Troy.
I move Amendment No. 19:
In page 55, to delete lines 4 to 14.
The Minister will essentially merge An Garda Síochána with what up to now has been considered to be the civilian members of An Garda Síochána and I have no problem with that whatsoever. I have no problem with the majority of the proposals in the Bill but I have a problem with is that it can be done compulsorily, that the Minister can make an order and "every member of the civilian staff of An Garda Síochána, who is a civil servant of the Government, immediately become the coming in to operation of this section and who is designated by order of the Minister for the purposes of this section shall, on being so designated become a member of garda staff". It is the fact that it is not voluntary.
I completely support what the Minister is doing in setting up this broader Garda staff but as we speak, there are a number of people who are civil servants and they joined the Irish Civil Service and that brings with it considerable disadvantages, arguably around pay, and on the right to run for election. Those disadvantages are not going to be resolved by joining An Garda Síochána. What they do have is their mobility within the Civil Service. They are civil servants and, for example, a number of Departments are based in Ennis that they can apply for, as there are in Wexford, Limerick, Kerry, Dublin and all other parts of the country. They can apply and move form one branch of the Civil Service to another. This will essentially take them out of that and will mean that the Minister, by order, can determine where they will be moved. That is unfair. It is a little bit like those who signed up to be water workers for the county council and were to be county council employees but then Irish Water was established and they were to be moved across. The Minister with responsibility for Housing, Local government has said that it is agreed that nobody will have to move. In this instance, it allows the Minister to determine that people have to move and that is my problem. When I raised this issue on Committee Stage, I was told there had been significant consultation with the unions that represent these workers and that there would be further significant consultation with them. Where does that stand now? What consultation has taken place with the trade unions since Committee Stage? What succour can the Minister provide in respect of my concerns about people being involuntarily moved out of the Civil Service in to the civilian staff of An Garda Síochána? To be absolutely clear, I do not have a problem with what the Minister is trying to do, but rather the degree of compulsion that is provided for in the Bill.
I thank the Deputy and it is good that he obviously agrees with the overall ambition that An Garda Síochána should be treated as a single organisation and as a single workforce. There has been engagement. On 18 May, the then Minister met with Fórsa, on 29 May, the deputy secretary of my Department met with the Association of Higher Civil and Public Servants, and I intend to meet Fórsa and continue that engagement over the summer and into the new term. I will clarify, not just for the Deputy but for members of civilian staff, that it is not the case that come the beginning of January when the Bill is enacted and comes into play that their terms will change and that they will move to this new position. It is absolutely not the case. There will be no moving to commence this particular Part until there is agreement with the unions as to what that looks like. That has not been decided and that will only be decided with the full agreement of the unions and the civilian staff and it is my intention that I do not progress that without their support. There are a lot of potential options such as a run-in timeline, grandfathering and various other ways in which we can look at this. There is obviously the possibility that newer members who join would join on the new terms. That is something that still has to be worked through. There has been confusion that come January when this is enacted, this would automatically come into play and that I would automatically sign this. That will not be the case. I will not sign anything until there is agreement with the staff. There are still a number of options that can be worked through and that engagement and conversation is happening. We will need to continue that before the Bill is enacted. I stress that there are a lot of benefits to a potential new contract and the Garda being treated as a single organisation, particularly for civilian staff because Parts of the Bill intend that many more duties will be taken on by the civilian staff to free up front-line gardaí.
This is to ensure we have the numbers we need in the community and in the various specialist roles. There will be an opportunity for newer members and potentially those who may wish to take this on or not. However it is decided, there would be a lot more mobility even within the Garda and many benefits. There would be many positive aspects because those directly recruited into An Garda Síochána would be receiving training in policing areas where they had not received training before. I do not believe it is the case that current members of the Garda do not see themselves as part of a single workforce, but providing a new, clear platform and mechanism would allow for the specific training in question and more opportunities, including promotional opportunities. This is absolutely not a done deal. There is a lot more engagement to happen, and the Deputy has my commitment on that.
We have met the unions on this. They have major concerns. I am encouraged by what the Minister is saying about the ongoing negotiations. The civil servants working in the Prison Service may have some of the same concerns. That should be taken into account if there is a difficulty in this regard. That could be another problem coming down the tracks.
I move amendment No. 21:
In page 58, to delete lines 22 to 25 and substitute the following: "(2) Before determining policing priorities, the Authority shall consult any such persons as the Authority considers appropriate.".
This is just making the point that we would like the authority to have more power and not to be beholden to the Commissioner entirely.
My understanding of the amendment is that it would remove an obligation placed on the authority to consult the Commissioner specifically and the national office for community safety before determining policing priorities. This consultation is an essential requirement. Even if it were not set out in law, it would happen. Not stating expressly that there must be consultation with the Commissioner would go against the spirit of this legislation. If it is the Deputy's intention to expand the existing provision, perhaps there is a way in which we can consider "the Commissioner and other relevant bodies". The amendment would remove the expressly stated requirement to deal directly with the Commissioner. It is important to stress this requirement. Perhaps we could explore what exactly the amendment implies further.
Deputy Daly has referred to the amendment. While it is short, its wording is important to ensure as much consultation as possible in determining the policing priorities of the authority.
I want to comment on the Bill in a more general sense. In March, I spoke about this Bill and said its importance cannot be overstated. This remains the case. In the main, the amendments are minor but necessary alterations to the text of the Bill. The Bill creates a modern framework for policing and will modernise our police force, An Garda Síochána. Policing is about serving the people, and the work starts in the community and with people in the community knowing their local gardaí, feeling comfortable approaching them and supporting them. Unfortunately, in recent years we have seen a falling off in the number of gardaí assigned to community policing roles, and this can unwittingly create a barrier between gardaí and local communities.
It is my sincere hope that the changes introduced in this Bill will see a renewed focus on community policing. Limerick communities need community gardaí. Without them at the heart of a community, trust can be lost. When a community sees gardaí in its area only when they are making arrests, it can result in a them-versus-us situation. Division can be avoided.
In 2008, there were 92 community gardaí in Limerick city. As of July 2020, there were 31. This void allows the few nefarious characters to thrive in Limerick. We saw this in several communities. At one stage, there was a 24–7 drug supermarket on a busy residential street. This went on for about three years. The presence of community gardaí often gives reassurance to older members of a community. Importantly, they serve as role models for younger people.
The other element of this policing plan for which I have great hopes relates to the importance that seems to be attached to the idea of community safety and the prevention of harm, particularly to vulnerable individuals. Including a specific objective in this regard is most welcome. In my dealings with the gardaí in Limerick, I found that the rank-and-file members practise this objective every day. I have found them to be kind and caring when faced with people who are suffering, especially those struggling with mental health challenges. Often, the problem arises not with the gardaí dealing with the vulnerable person but at the next step. Particularly where there are mental health challenges, gardaí have nowhere to bring people to. Policing is not just the responsibility of gardaí but of all the Departments of the State and the wider community. This principle should create a more holistic approach to policing in this State.
The Bill is much needed and is welcome. Despite the myriad of challenges they face, gardaí continue to do good. They operate without all the resources they need. If you live on the north side of Limerick and have reason to call the gardaí, you will be waiting for some time for them to call out. It is not because they do not care but because they must prioritise given Limerick's resources. On Limerick city's north side, there is often only one patrol car available. It is a huge area. It includes the whole north side of Limerick city, two regeneration areas, large areas of Corbally and the area extending as far as Ardnacrusha. This is an impossible situation to leave local gardaí in. People are frustrated over the lack of a response or the variations in responses when they contact the Garda. This affects all communities, whether they are middle class or working class. How can gardaí respond when they do not exist or when there is simply nobody available?
Stations in Limerick, Cork and Waterford are recording five-year peaks in reported crimes and Garda numbers are down. The Garda Representative Association has warned that recruitment targets have already been missed this year.
In the Limerick city area, basically the Garda stations at Henry Street and Roxboro, there were 511 gardaí in 2011. In May of this year, with an increased population, we have 59 gardaí fewer, or 452 in the same two stations. While I welcome this Bill, we must see the objectives set out in the policing plan matched by the Government in terms of recruitment and the delivery of resources that the Garda deems necessary.
Given that my initial point has been clarified, my understanding of this amendment is that it would remove the need for the authority to consult the Garda Commissioner and the national office. Section 61(2) requires the authority to consult the Garda Commissioner, the national office and such other persons as the authority considers appropriate. I am not sure why we would remove the need to consult the Garda Commissioner. It is an absolute must and goes to the very heart of what we are discussing. It is an essential requirement in determining any of the policing priorities to have the Garda Commissioner playing a key role. The Bill allows the authority to consider any other persons it considers appropriate.
It states the authority shall consult any such persons as the authority considers appropriate. It does not exclude the Garda Commissioner at all. It is just that we do not feel it should be necessary to name anyone specifically, because such a person would be covered by the wording "any such persons as the Authority considers appropriate".
I move amendment No. 22:
In page 66, to delete lines 12 and 13 and substitute "it for the period to which an annual service plan relates, so inform the Board, the Authority and the Minister.".
When the Commissioner feels he will exceed his resources for the year, he is obliged to tell only the Minister and the board. The amendment will add an additional obligation, to tell the authority. The idea is to strengthen the powers of the authority.
One of the fundamental changes in this Bill is to separate the oversight and governance of the organisation. At present, the Policing Authority is responsible for oversight but, as we know, it is also involved in governance. In appointing people to senior ranks, the intention is not to have a crossover whereby they would be responsible for oversight while also involved in governance.
That is why we will have a new internal board, the role of which will be governance. The role of the Policing Authority, in its merged form, will be that of oversight. What is proposed in the amendment works contrary to the fundamental principle of the legislation in that we are separating governance and oversight of the organisation. There should be clear lines of responsibility between the different actors in the policing area. That is essential and it is a core part of what we are doing overall in the Bill.
I move amendment No. 24:
In page 88, line 33, to delete "for malicious injuries received" and substitute "for injuries inflicted as a result of a malicious incident within the meaning of that Act".
Amendment No. 24 relates to section 95 of the Bill, which provides for the secondment of members of An Garda Síochána to the Police Service of Northern Ireland. It restates, in large part, section 54 of the Garda Síochána Act 2005. This provision is to account for recent amendments made to section 54 of the 2005 Act by the Garda Síochána (Compensation) Act 2022.
Amendment No. 43 relates to section 177 of the Bill, which provides for the police ombudsman to enter into arrangements with An Garda Síochána, other police services or other bodies for the temporary engagement of persons with the office of the police ombudsman for the purpose of providing special assistance. It restates, in large part, section 74 of the Garda Síochána Act 2005. This provision is to account for a recent amendment made to section 74 of the 2005 Act by the Garda Síochána (Compensation) Act 2022. Amendments Nos. 24 and 43 are technical in nature.
I move amendment No. 34:
In page 109, to delete line 17 and substitute the following: "(d) to carry out, at its own initiative or at the request of the Minister, inspections in relation to any particular aspects of the operation and administration of An Garda Síochána relating to policing services (including in relation to adherence to human rights standards and cooperation with other public service bodies to enhance community safety) and make recommendations to the Garda Commissioner or the Minister, as the case may be, for any action that the Authority considers desirable;".
This amendment relates to inspections. The proposal is that the authority would be able to carry out, at its own initiative or at the request of the Minister, inspections in regard to any particular aspects of the operation and administration of An Garda Síochána relating to policing services. The general scheme of the Bill referred to a power to carry out such inspections, with specific reference to human rights standards and co-operation with other public service bodies to enhance community safety. That provision should be reintroduced. There is provision in the Bill for inspections but it should specifically include adherence to human rights standards. This was recommended by representatives of some of the bodies who contributed to pre-legislative scrutiny in order to strengthen the inspection role of the authority. In our submission to the Commission on the Future of Policing in Ireland, we opposed the abolition of the Garda Inspectorate. This amendment attempts to give it more powers once it is folded in under the authority.
As the Deputy outlined, this section of the Bill concerns functions and powers of the Policing Authority. His amendment seeks to expand its function in the carrying out of inspections. I confirm that the authority may carry out inspections either on its own initiative or at the request of the Minister. The amendment is unnecessary. Section 122 already provides for the general function of the new authority to carry out inspections. Along with that, sections 142, 148 and 149 provide further detail on the carrying out of inspections by the authority, either by its own volition or at the request of the Minister. These sections also cover the submission of recommendations, as proposed in the Deputy's amendment.
Section 142(1) provides for such inspections as long as they are in furtherance of the authority's objective, which is to oversee and assess the performance by An Garda Síochána of its functions relating to policing services under section 122. This function of An Garda Síochána includes the protection and vindication of the human rights of each individual and the prevention of harm to individuals, as provided for in section 9. The proposal in this amendment is already covered by several existing provisions. Therefore, I do not propose to support it. I am happy to engage further with the Deputy to clarify that all elements are covered in the Bill.
I move amendment No. 36:
In page 121, between lines 9 and 10, to insert the following: "Application of Freedom of Information Act 2014 to Authority
135.(1) Notwithstanding section 6(12) of the Freedom of Information Act 2014, the obligations under that Act shall apply to the Authority on and from the establishment day of the Authority.
(2) Notwithstanding section 2(1) of the Freedom of Information Act 2014, the “effective date” in the case of the Authority shall, for the purposes of that Act, be 21 April 2008.".
These are technical amendments to provisions concerning the Freedom of Information Act 2014. Amendment No. 36 relates to the new policing and community safety authority. It proposes to insert a new section to clarify aspects of the 2014 Act and their application to the new authority. Under section 6(12) of the 2014 Act, the obligations under the Act would only apply to the new authority on and from a date that could be up to six months after its establishment. The proposed new subsection ensures those obligations will apply to the new authority from the date of its establishment. This ensures there will be no gap between the application of the obligations of the Policing Authority and the Garda Inspectorate and those of the new authority.
The proposed new subsection (2) confirms that the effective date for the new authority for the purposes of the Freedom of Information Act 2014 is 21 April 2008. The effective date is the date from when the Act first applies to the new authority. The date of 21 April 2008 has been chosen as an appropriate effective date as it captures the effective date of both the Garda Inspectorate and the Policing Authority. The records of both the Policing Authority and the Garda Inspectorate are to be transferred to the new authority under sections 158 and 164 of the Bill. This ensures the new authority can fulfil any obligations of the Policing Authority and Garda Inspectorate under the 2014 Act with regard to those records.
Amendments Nos. 38 and 42 are technical amendments that provide for transitional provisions relating to the application of the Freedom of Information Act 2014 to any transferred records of the Policing Authority and the Garda Inspectorate. The effect of amendment No. 38 is that any actions or applications commenced by the Policing Authority will be completed by the new authority upon dissolution of the former.
This will ensure compatibility with the Freedom of Information Act 2014. Similarly, the effect of amendment No. 42 is that any actions or applications commenced by the current Garda Síochána Inspectorate will be completed by the new authority upon the former's dissolution. This will also be in line with the Freedom of Information Act 2014. Amendments Nos. 37 and 40 are consequential amendments arising from the insertion of the new section on transitional provisions in respect of the transfer of the records of the Policing Authority and the Garda Síochána Inspectorate.
Amendment No. 77 amends the amendment to Schedule 1 to the Freedom of Information Act 2014. An Garda Síochána is a partially excluded public body under freedom of information legislation. This means that freedom of information requests in respect of An Garda Síochána may only relate to human resources, finance or procurement. The effect of the amendment is to extend the range of records to which such requests to An Garda Síochána may relate to include the records transferred to An Garda Síochána from the Policing Authority.
I move amendment No. 38:
In page 139, to delete lines 7 to 22 and substitute the following: “Transitional provisions relating to Policing Authority
159.(1) Where, before the establishment day of the Authority, the Policing Authority has commenced any action under the Freedom of Information Act 2014 and all matters relating to the action have not been completed before that day, the action shall be deemed to have been commenced, and may be completed—(a) other than where paragraph (b)or (c)applies, by the Authority,(2) Where, before the establishment day of the Authority, an application under section 10 of the Freedom of Information Act 2014 in relation to an act of the Policing Authority has been made and all matters relating to the application have not been completed before that day, the application shall, notwithstanding section 153, be completed as if the Policing Authority had not been dissolved.”.
(b) in the case of records transferred to the Minister underparagraph (a), (b) or(c) of section 158(2), by the Minister, and
(c) in the case of records transferred to An Garda Síochána under paragraph (d), (e), (f), (g) or(h) ofsection 158(2), by An Garda Síochána.
I move amendment No. 39:
In page 140, to delete lines 5 to 17 and substitute the following: “160. (1) The Authority shall cause to be prepared any outstanding appropriation accounts of the Policing Authority.”.
As the Deputy will be aware, the Bill provides for the dissolution of the current Policing Authority and the establishment of a new policing and community safety authority. Section 160 provides for the preparation of the final accounts and annual report of the current Policing Authority. As currently drafted, this section is incompatible with the Comptroller and Auditor General Acts. It is proposed to amend section 160(1) to refer to any outstanding appropriation accounts rather than final accounts because, as a Vote-holding body, only appropriation accounts may be prepared in respect of the Policing Authority. It is also proposed to delete sections 160(2) and 160(3) which, as currently drafted, set out timelines for the preparation of the accounts and possible time periods to be covered by the accounts. These matters are set out in the Comptroller and Auditor General Acts. In addition, as currently drafted, provision is made for the Minister for Public Expenditure, National Development Plan Delivery and Reform to lay the accounts prepared under this section but, under the Comptroller and Auditor General Acts, appropriation accounts are laid before the Houses of the Oireachtas by the Comptroller and Auditor General. The proposed amendments would address all of these issues.
I move amendment No. 41:
In page 140, between lines 34 and 35, to insert the following: “Transfer of member of Garda Síochána Inspectorate
162.(1) The Minister may, before the establishment day of the Authority, designate a person who immediately before that day stands appointed under section 115 of the Act of 2005 as a member of the Garda Síochána Inspectorate to be appointed as—(a) a member of the staff of the Authority, and(2) Where, immediately before the establishment day of the Authority, a person stands designated under subsection (1), the person shall, on and from that day, stand appointed as a member of the staff of the Authority and an inspector of policing services for a period not exceeding 2 years.
(b) an inspector of policing services.
(3) Subject to this section, a person who stands appointed under subsection (2)shall not, on the establishment day of the Authority, be subject to less beneficial terms and conditions of service or remuneration than the terms and conditions of service or remuneration to which he or she was subject immediately before that day.
(4) The terms and conditions to which a person is subject on his or her becoming a member of the staff of the Authority in accordance with subsection (1)shall be deemed to have been determined by the Authority in accordance with section 131.”.
This amendment will enable the Minister for Justice to designate one or more of the current members of the Garda Síochána Inspectorate as members of the staff of the authority and inspectors of policing services for a period not exceeding two years. This new section will ensure that the authority has the expertise and experience at its disposal to undertake its inspection functions effectively from its establishment date. Of course, in practical terms, this would require the consent of the officeholders concerned.
I move amendment No. 42:
In page 142, to delete lines 14 to 24 and substitute the following: “Transitional provisions relating to Garda Síochána Inspectorate
165. (1) Where, before the establishment day of the Authority, the Garda Síochána Inspectorate has commenced any action under the Freedom of Information Act 2014 and all matters relating to the action have not been completed before that day, the action shall be deemed to have been commenced, and may be completed—(a) other than where paragraph (b) applies, by the Authority, and(2) Where, before the establishment day of the Authority, an application under section 10 of the Freedom of Information Act 2014 in relation to an act of the Garda Síochána Inspectorate has been made and all matters relating to the application have not been completed before that day, the application shall, notwithstanding section 161, be completed as if the Garda Síochána Inspectorate had not been dissolved.”
(b) in the case of records transferred to the Minister under section 164(2), the Minister.
I move amendment No. 45:
In page 173, lines 27 and 28, to delete “, having consulted with the Garda Commissioner”.
The legislation as currently drafted provides that "The Police Ombudsman shall, on receipt of a notification [...] having consulted with the Garda Commissioner [...] decide to take any one or more of" a number of listed actions. This seems to impose an obligation to consult with the Commissioner. Based on what we heard in the committee, the organisation has not requested a requirement to consult with the Commissioner before deciding what do about an incident of concern. We propose to delete the part that says the ombudsman must consult with the Garda Commissioner.
At the heart of this is a desire to ensure strong co-operation and co-ordination between An Garda Síochána and the new equivalent of GSOC, whatever title is conferred on it. The purpose of this consultation is to ensure that this new incident of concern process is operable and efficient. Section 204 provides that, having notified the police ombudsman of an incident of concern, the Garda Commissioner may still take lawful actions to prevent the commission of offences or breaches of professional standards of behaviour. This includes commencing or continuing a criminal investigation. This obviously prevents any delay while waiting for the ombudsman's decision as to what action should be taken next and avoids the risk of being unable to deal with a criminal matter in line with best practice. Where there is potential for a live investigation to be compromised, there needs to be clear and defined communication. That again goes back to what I said at the outset. There needs to be co-operation, co-ordination and communication between the Commissioner and the ombudsman.
I am advised that the current workload of GSOC predominantly comprises retrospective complaints. The introduction of incidents of concern will expand that workload to potentially include matters that require immediate investigation or that are already the subject of a live Garda investigation. In that regard, it is important that the police ombudsman and the Garda Commissioner develop effective processes to ensure that these concerns are addressed and dealt with consistently, effectively and efficiently. In that regard, protocols will be put in place to support these processes but, in light of the intention of the provision, this is necessary.
Regarding the broader process, I see no benefit in removing something that encourages and requires good communication between the two organisations. In this instance, it is the Commissioner who sees something wrong, perhaps a governance issue or another matter of concern, and who then raises it with the ombudsman. It is the Commissioner making the observation in the first instance. I see no harm or difficulty in ensuring that there is continuous engagement to ensure there is no duplication and to ensure that the two bodies are working with each other, rather than in parallel, in that regard.
Obviously, we do not want to prevent the police ombudsman having a consultation with the Garda Commissioner if he or she wishes to do so but, in order to preserve the office's independence, we do not feel there should be any such obligation. From my reading of it, it seems there is an obligation. That is why we will be pressing the amendment.
Again, I am happy to engage further with the Deputy but, in this regard, the timeframe has already been extended from 12 to 18 months. That happened only seven years ago. Prior to setting out the timelines here, we engaged with An Garda Síochána, with GSOC and with the Director of Public Prosecutions, all of which have said they do not have any issue with the 18 months and none of which requested that it be extended any further.
I move amendment No. 47:
In page 194, to delete lines 21 to 23.
Section 220 provides a right of review for complainants who are dissatisfied with the determination of the police ombudsman that a complaint is inadmissible or that an investigation be discontinued. Section 220(8) currently provides the police ombudsman with the power to review a decision made under Part 6 and to take any appropriate action to reconsider a decision found to be incorrect. My Department has engaged with GSOC and with the Attorney General's office on this particular subsection. As drafted, it could possibly be open to misinterpretation or used as an avenue for a broader right of review than was originally intended. It is therefore proposed to delete section 220(8) in its entirety. To be clear, deletion of this subsection in no way limits or detracts from the police ombudsman's ability to undertake such a review or to take action to address incorrect decisions.
Such a power is administrative in nature. It does not require reinforcement in statute. My officials have consulted the current Garda Síochána Ombudsman Commission, which agrees with this view and the proposed approach here.
I move amendment No. 48:
In page 194, line 33, to delete “the Police Ombudsman” and substitute “the Office of the Police Ombudsman”.
Section 221 provides for a judge-led inquiry into the conduct of the police ombudsman, the deputy police ombudsman, and the officers of the police ombudsman, and-or the policies, practices and procedures of the police ombudsman on a single occasion, or generally, with regard to the investigation under Part 6. Amendment No. 48 proposes to delete the reference to the police ombudsman in section 221(1)(b), and replace it with a reference to the office of the police ombudsman. This creates a necessary distinction between an inquiry into the conduct of the officeholder, which is captured under section 221(1)(a), and the policies, practices or procedures of the office of the police ombudsman itself, which is intended to be captured under section 221(1)(b).
Amendments Nos. 49 and 50 relate to the report prepared by the appointed judge following the completion of this inquiry. On completing the inquiry, the appointed judge is required to submit a report of his or her findings on any recommendations to the Minister for Justice. The Minister is required to forward a copy of this report to the police ombudsman for any action the police ombudsman considers appropriate. However, under paragraph (a) of subsection (1), the conduct of the ombudsman may be the subject of an inquiry. The purpose of amendment 50 is to insert a new subsection, which has the effect of removing the obligation on the Minister to forward the report to the police ombudsman, obviously in circumstances where the police ombudsman is actually the subject of the inquiry. Instead, the Minister may use his or her discretion as to whether such a referral would be appropriate, depending on the content of the report. Amendment No. 49 is, therefore, a consequential requirement relating to the previous amendment, and it inserts a necessary cross-reference to the proposed new subsection.
I move amendment No. 50:
In page 196, between lines 3 and 4, to insert the following: “(10) Where a report submitted to the Minister under subsection (8)concerns an inquiry into the conduct of the Police Ombudsman, subsection (9)shall apply subject to the modification that the reference in that subsection to the Minister shall forward shall be construed as a reference to the Minister may forward.”.
I move amendment No. 57:
In page 214, between lines 10 and 11, to insert the following:“(l) section 256;”.
These amendments relate to section 45 of the Freedom of Information Act 2014. Currently, under section 45(10), the Information Commissioner is excluded from accessing information, documents or things, or An Garda Síochána stations designated by regulations made under section 126 of the Garda Síochána Act 2005, as relating to the security of the State. Amendment No. 57 inserts a new section in the Bill, which will be similar to section 126 of the 2005 Act. It would enable the Minister for Justice to prescribe certain information, documents or things, as relating to the security of the State, and to designate Garda premises in which such information or documents are held.
Amendment No. 58 provides that any regulations made using this regulation power must be approved by Government. Amendment No. 76 amends section 45(10) of the Freedom of Information Act 2014 in order to refer to this new regulation-making power, rather than section 126 of the Garda Síochána Act 2005.
I move amendment No. 58:
In page 223, between lines 15 and 16, to insert the following:
“Regulations relating to matters concerning security of State
256. The Minister may, having consulted with the Garda Commissioner, for the purposes of section 45(10) of the Freedom of Information Act 2014, make regulations prescribing—(a) information, documents or things, or classes of information, documents or things relating to the security of the State, and
(b) Garda Síochána premises in which information, documents or things, or classes of information, documents or things, relating to the security of the State are held.”.
I move amendment No. 59:
In page 231, to delete lines 18 and 19 and substitute the following:“ “111. An tÚdarás Póilíneachta agus Sábháilteachta Pobail
112. oifig an Scrúdaitheora Neamhspleáchum Reachtaíocht Slándála”.”.
I move amendment No. 60:
In page 232, lines 12 to 15, to delete all words from and including “and,” in line 12, down to and including “otherwise” in line 15.
These proposed amendments amend the interpretation of "member of garda staff" in amendments being made to other Acts of the Oireachtas. The purpose of these technical amendments is to ensure consistency between, on the one hand, the meaning of "member of garda staff" in section 2 and the cross-references to that term in amendments to other enactments contained in Part 10. The meaning assigned to "member of garda staff" is persons appointed by the Commissioner as Garda staff following the coming into operation of the Bill and current civilian staff following their designation as Garda staff by order of the Minister for Justice.
As Deputies will be aware, there is a statutory obligation to engage with Garda staff trade unions as associations prior to the making of any such order. The construction provisions applied to the term ensure that before making the order, "member of garda staff" is understood to include the current civilian staff.
This is an ask, I think, from the unions and it bears well regarding the engagements relating to another section related to Garda staff and perhaps also to Prison Service staff, which I flagged earlier and which may very well become an issue. I support the amendment.
I move amendment No. 61:
In page 232, to delete line 19 and substitute the following:“ “Office of the Police Ombudsman
An Oifig Náisiúnta um Shábháilteacht Pobail
Independent Examiner of Security Legislation
An tÚdarás Póilíneachta agus Sábháilteachta Pobail”.”.
Following engagement between my Department and the National Archives of Ireland, it is proposed that all existing bodies under the aegis of the Department, including all new bodies being established by this Bill, should be explicitly listed as being bound by the National Archives Act 1986. The proposed amendment extends the National Archives Act to include all of the new bodies set up under the Bill. In line with amendments in grouping No. 1, the names of the bodies are provided for in the Irish language, with the exception of the office of the police ombudsman because, as I have mentioned previously, the name of this body is still subject to consideration more generally. I will return to this matter when the Bill returns to the Seanad.
I move amendment No. 62:
In page 233, between lines 2 and 3, to insert the following: “Amendment of Second Schedule to Electoral Act 1992
267.The Second Schedule to the Electoral Act 1992 is amended—(a) in Part V, in Rule 29—(i) in paragraph (5)(a), by the substitution of “a member of garda staff” for “a member of the civilian staff of the Garda Síochána”, and(b) in Part VII, in Rule 38—
(ii) by the substitution of the following paragraph for paragraph (9):and“(9) In paragraph (5), ‘member of garda staff’ has the same meaning as it has in the Policing, Security and Community Safety Act 2023.”,(i) in paragraph (5)(a), by the substitution of “a member of garda staff” for “a member of the civilian staff of the Garda Síochána”, and
(ii) by the substitution of the following paragraph for paragraph (9):“(9) In paragraph (5), ‘member of garda staff’ has the same meaning as it has in the Policing, Security and Community Safety Act 2023.”.”.
Amendment No. 62 inserts a new section in the Bill to amend the Second Schedule to the Electoral Act 1992. The purpose of the amending provision is to amend Parts V and VII of the Second Schedule to the Electoral Act 1992 to replace references to members of the civilian staff of An Garda Síochána with references to "members of garda staff" and to replace the associated defined terms.
Amendment No. 65 inserts a new section in the Bill to amend the Disability Act 2005. The purpose of the amending provision is to replace references to members defined by way of the Garda Síochána Act 2005 with reference to this Bill.
Amendments Nos. 84 and 85 are also technical in nature. They are required to account for the delayed commencement of another piece of legislation, the Garda Síochána (Functions and Operational Areas) Act 2022. Although that Act was enacted in May 2022, commencement of certain provisions has not yet taken place. These proposed amendments are required to ensure that cross-references in both Bills are aligned correctly, regardless of which piece of legislation is commenced first.
Amendment No. 86 amends sections 2, 12 and 34 of the Garda Síochána (Compensation) Act 2022 to align with relevant provisions in the Bill. The proposed amendment updates the definitions in section 2 to align with the Bill. It substitutes a reference to civilian staff with a reference to "garda staff". In sections 12 and 34, the amendment replaces cross-references to the Garda Síochána Act 2005 with cross-references to the Bill.
I move amendment No. 65:
In page 235, after line 33, to insert the following: “Amendment of section 46 of Disability Act 2005
272.Section 46(3) of the Disability Act 2005 is amended by the substitution of “members of An Garda Síochána within the meaning of the Policing, Security and Community Safety Act 2023” for “members, within the meaning of section 3(1) of the Garda Síochána Act 2005, of the Garda Síochána”.”.
I move amendment No. 76:
In page 246, between lines 20 and 21, to insert the following: “(c) in section 45, by the substitution of the following subsection for subsection (10):“(10) Subsection (2) shall not apply to—(a) information, documents or things, or classes thereof prescribed by regulations under paragraph (a)of section 256of the Policing, Security and Community Safety Act 2023, or
(b) Garda Síochána premises prescribed by regulations under paragraph (b)of that section,
except to the extent specified in a direction of the Minister for Justice.”,”.
I move amendment No. 77:
In page 246, between lines 24 and 25, to insert the following: “(ii) in paragraph (n), by the substitution of “or procurement matters, or records transferred to the Garda Síochána under section 158(2)of the Policing, Security and Community Safety Act 2023” for “or procurement matters”,”.
I move amendment No. 79:
In page 246, to delete lines 33 to 37, and in page 247, to delete line 1, and substitute the following: “(iv) in paragraph (an), by the substitution of “functions;” for “functions.”, and
(v) by the insertion of the following paragraphs after paragraph (an):“(ao) Bord an Gharda Síochána, other than insofar as it relates to administrative records relating to human resources, finance or procurement matters;
(ap) the Independent Examiner of Security Legislation in the”.
I move amendment No. 80:
In page 247, to delete lines 16 to 18 and substitute the following: “ “(p) An tÚdarás Póilíneachta agus Sábháilteachta Pobail,
(q) oifig an Scrúdaitheora Neamhspleách um Reachtaíocht Slándála.”,”.
I move amendment No. 84:
In page 250, to delete lines 20 and 21 and substitute the following: “(II) “pursuant to subsection (1)or (4)of section 28of that Act” for “pursuant to an authorisation under section 32 of that Act”,”.
I move amendment No. 85:
In page 250, to delete lines 27 to 35 and substitute the following: “(I) in paragraph (a), by the substitution of “section 33(1)(c)(i)of the Act of 2023” for “section 33(1) of the Act of 2005”, and
(II) in paragraph (b), by the substitution of “section 33(1)(c)(i)of the Act of 2023” for “section 33(1) of the Act of 2005”,”.
I move amendment No. 86:
In page 251, after line 12, to insert the following: “Amendment of Garda Síochána (Compensation) Act 2022
293.The Garda Síochána (Compensation) Act 2022 is amended—(a) in section 2—(i) in the definition of “Garda Commissioner”, by the substitution of—(b) in section 12, by the substitution of “garda staff” for “the civilian staff of the Garda Síochána” in both places where it occurs, and(I) “section 26of the Act of 2023” for “section 9 of the Act of 2005”, and(ii) by the substitution of the following definition for the definition of “member”:
(II) “pursuant to section 28of that Act” for “pursuant to an authorisation under section 32 of that Act”,“ ‘member’ means—(iii) by the insertion of the following definitions:(a) a member of An Garda Síochána within the meaning of the Act of 2023, and
(b) a trainee within the meaning of the Act of 2023;”, and“ ‘Act of 2023’ means the Policing, Security and Community Safety Act 2023;
‘member of garda staff’ has the same meaning as it has in the Act of 2023;”,
(c) in section 34—(i) by the substitution of “section 39of the Act of 2023” for “section 31 of the Act of 2005” in both places where it occurs,
(ii) without prejudice to paragraph (i), in subsection (1), by the substitution of “Act of 2023” for “Act of 2005” in both places where it occurs, and
(iii) in subsection (2), by the substitution of “garda staff” for “the civilian staff of the Garda Síochána”.”.
I move amendment No. 87:
In page 252, after line 14, to insert the following:
6. No. 19 of 1990 Industrial Relations Act 1990 Section 23(1D) and the Sixth Schedule.
There are two places where this is contained. One, which I had proposed to remove in the context of section 25, is the proscription on the right of a person to withhold his or her services, in the context where gardaí will be proscribed from doing so by this proposed law, if it passes and is not amended in the Seanad. The second thing concerns the consequences because people can be sued for the consequences of a strike but for the Industrial Relations Act 1990. The proposed section which I have included in this amendment specifically removes members of An Garda Síochána from this provision.
I do not think anybody thinks members of An Garda Síochána are going to strike willy-nilly or, arguably, going to strike at all. John Horgan, who is a former chair of the Labour Court - he is a constituent of mine, but that is very much a secondary matter - and a man with a very distinguished career in industrial relations in the private and public sectors, was commissioned to write a report on this matter. My understanding is that he recommended that this issue be negotiated in such a way as would allow gardaí to give up the right to strike, as police officers do in many other countries, in return for certain terms and conditions. This would be their wont or right to do so. At the moment, though, they do not have this bargaining power. Ultimately, the right to strike is the basis upon which people negotiate collectively, because while it is all well and good to admit people into collective bargaining processes, what are they going to be bargaining with if they have to provide their labour? They will not be bargaining with very much at the end of the day. It will be a very one-sided discussion.
I raised this issue with the Minister's very able substitute, the Minister, Deputy Harris, in respect of this unlawfulness. I pointed out at the time that it would be a sort of a sad irony if legislation entitled the Policing, Security and Community Safety Bill 2023 was in itself to be contrary to international law and our international legal commitments. The decision of the European Committee of Social Rights stands. It may not be binding as a matter of domestic law, but neither is the International Covenant on Civil and Political Rights, ICCPR, the Universal Declaration of Human Rights or any of these matters. These are, however, laws and they are binding on the State, but people cannot get onto the Four Courts and sue on the back of them. This does not mean, however, that they are not laws and can, therefore, be flagrantly disregarded, most of all by a Minister for Justice. I say this because ours is a State which takes the rule of law seriously, takes international law seriously and regularly criticises other countries, and rightly so, for breaches in this regard. It is usually, I suppose, of course, the Department of Foreign Affairs rather than the Department of Justice making the criticisms, but this is the law because those who have been appointed to determine the lawfulness or otherwise of this measure have made their determination that Ireland has been found to be in breach of its legal commitments this regard. These are legal commitments which were freely entered into.
I explained the situation to the Minister, Deputy Harris, when he held this portfolio, and he said it would be extraordinary if a Bill being brought forward by the Department of Justice was contrary to law. He expected that we would go into this matter in further detail. I look forward to hearing this detail now and to hearing what we are going to do to bring Ireland into compliance with its international legal commitments, as we introduce a Bill to ensure An Garda Síochána complies with its constitutional and domestic legal duties. The least we can expect is that the State will also comply with its legal duties towards those members of An Garda Síochána who are unlawfully deprived of the right to strike as it stands at the moment.
To restate some comments made on Committee Stage, as acknowledged by the Deputy, the Industrial Relations (Amendment) Act 2019 gave members of An Garda Síochána full access, for the first time, to the State's industrial relations mechanisms, including the Workplace Relations Commission, WRC, and the Labour Court. As a result, Garda representative associations are in a position to represent their members in national pay talks. This puts them on a par with trade unions in this sense. I accept that certain aspects of the Industrial Relations (Amendment) Act 2019, including protections which apply to registered trade unions that engage in legitimate trade union actions, were not applied to the Garda associations. This was in recognition of the fact that gardaí are not simply "workers" in an everyday sense of the word. They have extensive powers which allow them to protect the peace and, particularly in this context, our security and the security of the State. This is a difference between ourselves and many other jurisdictions. Our police service is responsible not just for policing but also for the security of this State. It has been decided, therefore, that it would not be appropriate to provide all the protections contained in the Industrial Relations Act 1990 to workers who perform such a role, as there is simply greater risk involved in comparison to the roles of more everyday workers. It should again be noted that significant improvements in the arrangements for dealing with human resource issues were made in the 2019 Act. Any revisiting of these issues would be much broader than the scope of this Bill. With that in mind, I am not going to accept this amendment. I am not in a position to support it.
The Minister said it would not be appropriate. It is an extraordinary proposition for a Minister for Justice to say that it would not be appropriate for Ireland to adhere to its international legal commitments. It is an extraordinary proposition that any Minister of any government of this State would say that it is inappropriate or not appropriate for Ireland to adhere to the international legal order and to the rule of law. I say this because the rule of law is contingent upon states adhering to their commitments, whether they agree with them or not.
We have had this type of politics play out in the US where a duly-elected executive determined that it does not like international law and it is a bit messy, so it would be inappropriate for it to adhere to it. We have had that type of politics quite recently in the United Kingdom, our nearest neighbour. It is very unlike the UK. It was a brief departure, one hopes, from their otherwise steadfast commitment to the rule of law, at least publicly.
I refer to what has happened in Northern Ireland but, we, of course, Ireland, were able to bring the United Kingdom of Great Britain and Northern Ireland to the European Court of Human Rights because of our commitment to institutions such as this. Now the Minister is turning around and is saying that when she does not like the answer that it would be inappropriate. I cannot think of anything more inappropriate from the Minister for Justice.
There are exceptions in the charter, as the Deputy will be aware, which relate to public interest and to security matters. As I have outlined, we are in a position where members of An Garda Síochána are not just responsible for policing but also for security matters and that is why we have taken this decision. This will always be under review, and we will continue to engage with the Council of Europe, but there are clearly exceptions here that are part of the charter and that is where there is a public interest or issues relating to security. That is the decision we have taken and those are the reasons upon which we have made those decisions.
There will always be exceptions that states will cling to to justify breaches of international law, just as our near neighbour clings to exceptions, or sought to do so. This is the first time that I am aware of that Ireland has spoken about exceptions. The other is a case that did not arise as recently, which is with regard to not having to justify the DPP's election to send a case to the Special Criminal Court. That is not something that concerns us right now because it is not germane to this Bill whereas this is.
On that basis I have no alternative but to press the amendment if the Minister's position is that we can throw out the line that there are exceptions when it does not suit us, and when we are found to be in breach of international law. It is a very disappointing position for the Government to adopt and a very worrisome one for the State to adopt given that Ireland has been to the forefront of advancing human rights.
Indeed, when it is human rights that the Minister likes, she seems to be quite prepared to stand behind them even if the basis in international law is very meagre, weak and feeble. If it is human rights that we like, we are happy to advance them but that is not how human rights work. They work in respect of rights we do not like but that we have to acknowledge, respect and deal with, as well as with people with whom we do not necessarily agree. It is not those rights that we like in respect of people we like because that is an easy thing to do. It is the opposite that is the case; it is the rights that we do not wish to protect, to adhere to or to enshrine that we nonetheless have no choice in accepting because that is what the rule of law is about. We do not enter into commitments that we are not willing to adhere to. This State entered into that commitment, a case was taken and the State lost. On that basis, I press the amendment.
Ivana Bacik, Cathal Berry, Colm Brophy, James Browne, Richard Bruton, Colm Burke, Peter Burke, Mary Butler, Thomas Byrne, Jackie Cahill, Dara Calleary, Seán Canney, Ciarán Cannon, Joe Carey, Jennifer Carroll MacNeill, Jack Chambers, Niall Collins, Patrick Costello, Simon Coveney, Barry Cowen, Cathal Crowe, Cormac Devlin, Alan Dillon, Stephen Donnelly, Francis Noel Duffy, Bernard Durkan, Damien English, Alan Farrell, Frank Feighan, Peter Fitzpatrick, Joe Flaherty, Charles Flanagan, Seán Fleming, Norma Foley, Brendan Griffin, Simon Harris, Seán Haughey, Martin Heydon, Emer Higgins, Brendan Howlin, Heather Humphreys, Paul Kehoe, John Lahart, James Lawless, Brian Leddin, Josepha Madigan, Catherine Martin, Micheál Martin, Steven Matthews, Paul McAuliffe, Charlie McConalogue, Helen McEntee, Michael McGrath, John McGuinness, Joe McHugh, Aindrias Moynihan, Michael Moynihan, Jennifer Murnane O'Connor, Verona Murphy, Gerald Nash, Denis Naughten, Hildegarde Naughton, Malcolm Noonan, Darragh O'Brien, Joe O'Brien, Jim O'Callaghan, James O'Connor, Kieran O'Donnell, Fergus O'Dowd, Roderic O'Gorman, Christopher O'Sullivan, Pádraig O'Sullivan, Marc Ó Cathasaigh, Éamon Ó Cuív, John Paul Phelan, Anne Rabbitte, Neale Richmond, Eamon Ryan, Seán Sherlock, Brendan Smith, Duncan Smith, Niamh Smyth, Ossian Smyth, David Stanton, Robert Troy.
Chris Andrews, Mick Barry, Richard Boyd Barrett, John Brady, Martin Browne, Pat Buckley, Matt Carthy, Sorca Clarke, Joan Collins, Michael Collins, Rose Conway-Walsh, Réada Cronin, Seán Crowe, Pa Daly, Pearse Doherty, Paul Donnelly, Dessie Ellis, Mairead Farrell, Kathleen Funchion, Gary Gannon, Thomas Gould, Johnny Guirke, Marian Harkin, Gino Kenny, Claire Kerrane, Pádraig Mac Lochlainn, Mattie McGrath, Michael McNamara, Denise Mitchell, Imelda Munster, Catherine Murphy, Paul Murphy, Johnny Mythen, Carol Nolan, Cian O'Callaghan, Louise O'Reilly, Eoin Ó Broin, Donnchadh Ó Laoghaire, Ruairi Ó Murchú, Aengus Ó Snodaigh, Thomas Pringle, Maurice Quinlivan, Patricia Ryan, Róisín Shortall, Brian Stanley, Peadar Tóibín, Pauline Tully, Mark Ward, Jennifer Whitmore, Violet-Anne Wynne.