Michael McDowell (Dublin South East, Progressive Democrats)

The purpose of subsection (6) is to protect the Garda Síochána from civil actions with regard to it having failed in carrying out its functions. When I was a student at University College, Dublin, at the time of Bloody Sunday, I saw a mob burn down the British Embassy. One could argue that the gardaí, who had a cordon around the embassy, carried out their function to the best of their ability. However, we do not want a situation where the protection of life and property, as set out in section 7(10)(b), confers on an individual property owner the right to sue the Garda Síochána if his or her property is destroyed, notwithstanding the force's best efforts. It would create a new form of civil tort whereby the State would be liable for damages if the Garda Síochána, culpably or not, failed in its duty or function to protect life and property. It would expose the State to potentially huge claims for damages. When stating the purposes of a body, one does not want to imply the creation of a statutory duty, the breach of which vests in others the rights to damages. If it is left to an individual judge's decision in an individual case to create a tort based on section 7, the consequence for the Exchequer could be very significant.

If a garda breaches his duty in an unlawful or criminal manner, the State is liable. There are occasions where negligence by members of the Garda Síochána has given rise to liability. I am trying to protect us from a litigious society in which everybody would sue the State because they could establish that the damage done to them could have been prevented had gardaí discharged their function as set out in section 7(1) or section 7(3). It is wise when establishing functions for the Garda Síochána to make it clear whether we are making them actionable, per se, in the event of somebody suffering loss as a result of the non-performance of those functions.