Brian Lenihan Jnr (Dublin West, Fianna Fail)

The Minister for Justice, Equality and Law Reform has examined the issues raised in subsection (4) but is not prepared to accept the amendment. In common law, certain matters on which a garda can exercise a discretion relate to his or her position as an officer of the peace and a constable. That common law position has never been altered in this jurisdiction. Each individual member of the Garda Síochána has an individual discretion in certain matters. For example, a garda has the discretion as to whether to arrest an individual and whether to proceed in the prosecution of certain types of summary and minor offence. However, the Minister for Justice, Equality and Law Reform cannot direct a garda to arrest or prosecute an individual, who, for example, may have infringed the road traffic code by not having adequate illumination on a bicycle. These and many other matters are left to the Garda. This is of great importance to the citizen who needs the reassurance that a garda cannot be subject to a direction.

Section 22 gives the Minister power to issue to the Garda Commissioner written directives concerning any matter relating to the Garda Síochána. While it is drafted with a wide scope, subsection (4) ensures this wide power to be conferred on the Minister cannot be exercised to limit the independence of the Garda Síochána in performing functions in the investigation or prosecution of an offence. I gave the example of the exercise of the power of arrest. The same principle applies to many of the investigative powers which the Garda exercises at common law or statutory level. Equally, in the prosecution of an offence, a discretion rests with the Garda on a wide range of matters which come before the District Court. In the District Court, the Director of Public Prosecutions does not have power over the Garda, as a matter of law. He may have certain powers in practice but not as a matter of law. It is important that this discretion, essential to the confidence in the community enjoyed by the Garda, is safeguarded and respected by the legislation.