Michael McDowell (Dublin South East, Progressive Democrats)

I am very pleased to have this opportunity to open the debate in this House on the Garda Síochána Bill 2004. The Bill contains the most comprehensive, and I believe the most important, legislative proposals on policing ever to come before the House. It will replace, with only one or two exceptions, all of the Garda Síochána Acts going back to 1924 and will be a new constitution for the force at the beginning of this century.

The Bill has two main objectives. The first is to reform the legislative structure under which the Garda Síochána is managed. In particular, this will involve clarification of the role and objectives of the force and a redefinition of its relationship with the Minister and Government of the day. The second is to put in place a new mechanism to deal with complaints against members of the Garda which commands the confidence of the public and force alike. In achieving both objectives, this Bill meets a key commitment of the programme for Government.

The Bill's proposals reflect the outcome of a review of the Garda Síochána which was carried out under the Government's strategic management initiative. The review set out certain key principles. There should be clarity as to the roles and functions of the Minister and the Garda Síochána. Operational responsibility, including financial responsibility, should be assigned to the management of the force. The level of democratic accountability should be enhanced. The implementation of these principles should be achieved in an open and transparent fashion. While I have time to provide only a brief account of the Bill's contents, I look forward to hearing the views of Members today and on Thursday. As a matter of course, there will be an opportunity for more in-depth discussion on Committee Stage.

Before turning to the Bill's provisions, I wish to acknowledge the particular contribution of a Member of this House to police reform on this island. I refer to Senator Maurice Hayes who was not only a member of the Patten Commission on Policing in Northern Ireland, but earlier carried out a seminal review of the police complaints system in the North. This widely praised review formed the basis for the establishment of the Office of Police Ombudsman of Northern Ireland. While we cannot copy blindly what is done in the North or elsewhere, we must be ready to learn from others and adapt their experiences to our particular needs and circumstances. In preparing this Bill, I have therefore taken full account of police complaints system models in other jurisdictions.

We must bear in mind that our circumstances are quite unlike those of the United Kingdom and many other jurisdictions. Where we have one national police force, many countries have a number which gives rise to a need for very different structures. The UK, for example, has over 40 regional police constabularies and a number of national law enforcement agencies, including its intelligence services. As well as being our single police force, the Garda Síochána also functions as our intelligence service. The Bill and the structures it proposes must reflect this fact.

The very importance of the Bill heightens the need to get it right. That I have been conscious of this from the start was a major factor in my decision to publish the Bill's general scheme last July with detailed explanatory notes. I was also moved to invite submissions from interested groups and the public in general. Around 15 individuals and bodies took up my offer and submitted their views in writing to me. I also consulted with Garda management and held meetings with a number of Garda associations. Senators may also recall that I participated in a meeting of the Oireachtas Joint Committee on Justice, Equality, Defence and Women's Rights last September to discuss the draft proposals and to hear committee members' views on them.

I am grateful to all who expressed views on the general scheme whether they were supportive or critical and whether they endorsed the proposals or recommended changes. The submission of the Human Rights Commission deserves particular mention. I am pleased to see the commission has broadly welcomed the Bill and raised additional points which I will weigh carefully. The Bill reflects the detailed consideration I have given to every view expressed to me.

I turn now to the provisions of the Bill on the management of the Garda Síochána. Perhaps surprisingly, the Bill sets out for the first time in law the functions and objectives of the Garda. It clarifies the function of the force in prosecutions by placing on a statutory footing the practice of gardaí initiating prosecutions in the name of the Director of Public Prosecutions. The roles of and the relationship between the Minister and the Commissioner are defined openly and transparently. Existing legislation is silent on the relationship which has, inevitably, changed considerably over time. The Minister of the day will be entitled to set policing priorities. New and comprehensive reporting requirements will be put in place on matters which will include the plans of the Commissioner for each year ahead and the assessment he or she makes of each year gone by.

One issue that has attracted some comment is the provision which enables the Minister of the day to issue a directive to the commissioner on a policing matter. Such a measure is absolutely necessary because it formalises the relationship between the national police and the Government. I have previously given the example of a new foot and mouth crisis where the Garda Síochána might be required to close down the Border immediately. It is no answer to say the Garda Síochána would, in any event, do what is necessary. Of course, it would. It has shown time and again, for example during the last foot and mouth crisis, a readiness and an ability to meet any challenge. We are discussing here what the law should be and it would be extremely odd if the Bill regulated every detail but was silent on the big question of the State's capacity to respond to important events quickly and decisively.

It is important to emphasise that the Bill provides that this will be done in an open and transparent way. On every occasion a directive is issued — I do not imagine they will be issued that often — such a directive would have to be approved by Government and also laid before both Houses of the Oireachtas unless this would prejudice national security, and even in this case the issuance of the directive would have to be disclosed to both Houses. It is also made clear that no directive could ever interfere with the independence of the Garda Síochána in prosecutions.

The Commissioner is being assigned new powers and responsibilities for the distribution of the force, for financial matters and for the civilian support staff. In particular, the Commissioner is to be the Accounting Officer for the Garda Síochána, and will appear before the Committee of Public Accounts in that capacity. Members may have noticed the Bill does not mention other committees of the Houses of the Oireachtas. The Commissioner is already liable to appear on foot of other legislation before those bodies. These new powers are balanced by more comprehensive accountability measures, including the establishment of a statutory audit committee with independent members.

The Bill also provides for joint policing committees, with Garda and local authority representation. This is a year in which there will be a focus on local authority membership, functions and local democracy. For the first time, these committees will provide a forum where the Garda and local authorities can co-operate and work together to address local policing and other issues, which are in the management of the local authority, where the Garda will have a strong case to make for its particular interest to be taken into account. This is a significant innovation, which will strengthen policing at a local level.

Another important development in the Bill is the emphasis placed on upholding and protecting human rights. The Bill specifically provides that the Garda Síochána must have regard to this in performing its functions. There will also be a specific reference to upholding human rights in the revised oath new members of the Garda Síochána will take. Respect for human rights will be further enhanced by a provision in the Bill for the drawing up of a new code of ethics for the Garda Síochána.

The Bill also provides for a statutory basis for appointing volunteer members to the Garda Síochána in the future, if it is decided that such an approach would be beneficial. The idea is that committed members of the public could volunteer to provide a reserve of part-time personnel to support the work of the Garda Síochána. The United Kingdom has had legislation since the 19th century providing for the appointment of special constables who to this day provide a valuable and unpaid role, involving members of the community in policing. Almost every common law country with a system similar to ours has some form of police reserve of that kind. No decision has been taken by the Government to establish a reserve of volunteer members, but it is valuable to lay the statutory foundation for such a reserve so that it can be utilised if future circumstances warrant it.

A key objective of the Bill is the establishment of an independent Garda Síochána Ombudsman Commission to replace the existing Garda Síochána Complaints Board. It is undeniable that the present system of dealing with complaints against members of the force does not command full public confidence. The complaints board itself has pointed to problems with the present arrangements. I strongly believe there is a need for a new mechanism to ensure openness, transparency and public confidence in the investigation of complaints against members of the Garda Síochána.

The Bill also contains provisions to enable the new ombudsman commission to investigate Garda conduct even where no complaint has been made, but where an investigation is clearly called for in the particular circumstances. The ombudsman commission can act on its own initiative in these cases, or it can act on a referral from the Garda Commissioner or the Minister.

The ombudsman commission will consist of three persons, one of whom must be a woman and one of whom must be a man, and the Bill allows for the appointment of a superior court judge to one of the positions. The appointments will be to full-time positions for a term of between three and six years and the members will be appointed by the President on the nomination of the Government and on the recommendation of both Houses of the Oireachtas.

Perhaps the main question asked in respect of the ombudsman commission is whether it will be independent in its composition and investigations and the answer is "Yes". As regards its composition, none of its members can be a current or former member of the Garda Síochána. As regards the investigation of complaints, the key point is that every complaint will be either made to or referred to the ombudsman commission. The most serious complaints, involving death or serious injury, will have to be investigated by the ombudsman commission itself and it will be a matter for the commission, exercising its independent judgment, to decide in the case of any other complaint whether it should itself investigate it or whether it should refer it to the Garda Commissioner for investigation. If the ombudsman commission decides to refer a case to the Garda Commissioner for investigation, it can do so with or without supervision and can take over a case if it is not satisfied with the progress or even the outcome of an investigation. The ombudsman commission, therefore, will retain ultimate control over every investigation. In that respect, the statutory powers of the ombudsman commission are the same as those in Northern Ireland.

As regards more minor complaints — I mean that in relative terms as every complaint is important to the person making it — I hope that many of these will be capable of being resolved informally or by mediation. The existing system has provision for informal resolution, but it simply has not worked. The provisions of this Bill seek to promote informal resolution in cases where the ombudsman commission considers it appropriate and where all parties concerned agree.

As regards complaints, as I said, the ombudsman commission will be able to act even in the absence of complaints, but six months will remain the time limit for making a complaint. However, there will now be an exception whereby the ombudsman commission can extend this time limit if there are good reasons for doing so.

The Bill will also enable the ombudsman commission, at the Minister's request or following the Minister's approval of a recommendation of the ombudsman commission itself, to examine a practice, policy or procedure of the Garda Síochána with a view to preventing or reducing the future incidence of complaints arising from that practice, policy or procedure. It is not purely individual case specific complaints we are dealing with here; we are also dealing with systemic problems which give rise to complaints.

As the ombudsman commission will be an independent body, it follows that it must be allowed to recruit its own staff. Its staff, both administrative and investigative, will have civil servant status. In addition, the Bill enables the ombudsman commission to enter into arrangements with the Garda Síochána or other police forces, or any other bodies, to engage on a temporary basis police officers or other persons, presumably with skills of investigation, to assist it in carrying out its investigations. There is a similar provision in Northern Ireland. It clearly makes sense for the ombudsman commission to be empowered, at its own discretion, to make use of such expertise especially in the early days of its operation while its staff gain experience and get up to speed in the carrying out of both civil and criminal investigations.

As I explained last July, I consciously omitted from the general scheme of the Bill the detail of the investigative powers of the ombudsman commission. I recognised at the time that this was a crucial area and I wanted time to consider what was needed to ensure that we got it right. Having considered the matter at length, I concluded that, where criminal offences are involved, the ombudsman commission must be capable of conducting an investigation to the same standard as the Garda Síochána. It follows that its investigating officers must have essentially the same powers as members of the Garda Síochána. The Bill, therefore, confers on designated officers of the ombudsman commission all the powers and immunities and all the duties imposed on any member of the Garda Síochána by or under any enactment or the common law. There are only two exceptions to this. It does not confer any powers under the Offences Against the State Acts, or the Interception of Postal Packets and Telecommunications Messages (Regulation) Act 1993, other than the power to gain access to call-related information.

Special provision is also made for the search of Garda stations, in recognition of the position of the Garda Síochána as a security service and the fact that information relating to national security could be held in some stations. The Bill provides, therefore, that while designated officers will have the power to enter and search a Garda station, such a search must be authorised by a member of the ombudsman commission who must also notify the Minister and the Garda Commissioner of the intended search. No time limit, such as was originally contemplated, has been provided and no notice period has been provided.

Provision is made for the Garda Commissioner to object to a search in such circumstances, but only on grounds relating to national security. It will then be open to the Minister to issue directions excluding from the search any part of the premises in question, or any storage facility containing information or documentation, or to impose any other necessary conditions relating to the security of the State. The Bill also provides for regulations designating a Garda station where information or documentation relating to the security of the State is held, which shall not be subject to search except to the extent that the Minister so directs. Regulations may also be made designating information or documentation relating to the security of the State which must not be disclosed, again except to the extent that the Minister so directs.

These exceptional limitations are reasonable and necessary having regard to the fact that the Garda Síochána is not just a regional constabulary but a national security service. However, in order to provide reassurance against any concerns that they might be too readily invoked, I have included a counterbalancing safeguard in the Bill. A judge of the High Court will have oversight of the operation of the provisions of the Bill authorising the withholding of, or denial of access to, information on grounds of State security. The Bill also makes provision for judicial oversight of the conduct of designated officers of the ombudsman commission, in recognition of the fact that they are being granted such extensive powers. In essence, a High Court or superior court judge nominated by the Chief Justice will be able to conduct an inquiry in regard to any allegations that the ombudsman's officers have abused their powers.

In drawing up this Bill, I have taken account of the comments made by the Director of Public Prosecutions regarding the impact of the normal six month time limit for summary prosecutions on cases dealt with under the present system. Investigation files on complaints can be date-expired before they even reach the office of the DPP, making prosecutions impossible no matter how strong the evidence may be. Of course, one part of the answer will be to have speedier investigations, but I also think it right to provide in the Bill that the normal time limit of six months, set down originally in the Petty Sessions (Ireland) Act 1851, should be 12 months for summary proceedings relating to an offence reported to the Director of Public Prosecutions under the Bill.

In conclusion, I underline again the importance I attach to the reforms set out in this Bill. They are designed to improve the management of the Garda Síochána, promote a good and effective relationship between the force and the Government of the day, and more than anything, put in place a system of investigating complaints and allegations that is effective but fair, respects the rights of all, and commands and maintains the confidence of the public and the gardaí who serve them.

I advocate these reforms in a spirit of support for the Garda Síochána. I do it not to undermine but rather to underpin the work it does to protect our freedoms as individuals and as a society. Sight must never be lost of the sacrifices individual members of the force have made for our protection. Theirs is a difficult task and a challenging vocation. The force has its critics and must take fair criticism. From time to time, it has its failures. However, when we have to form judgments on the force and its members, we would do well to remember the simple, spontaneous acts of bravery and good character which form part of daily policing, qualities which are much more constantly prevalent than any or all of the infrequent failures.

There is an enormous reservoir of goodwill and respect towards the Garda Síochána. It is an unarmed force, a form of policing not practical in many other countries but one which is valued in this country and which is possible only because of the huge public support for and trust in the Garda Síochána. I mean the Bill to build upon that support and trust and, as such, I commend it to the House.