Michael McDowell (Dublin South East, Progressive Democrats)

I am not prepared to accept this amendment because I do not want to make the ombudsman commission unworkable. The policy underpinning this provision is that it should be open to the commission to engage whatever expertise it deems necessary for the effective performance of its functions. Given that the commission, just like the Northern Ireland ombudsman, has the power, if it so chooses, to conduct inquiries and investigations by using the services of experienced police officers, members of the Garda Síochána and otherwise, as well as other experts with other forms of relevant expertise, it is not necessary that there must be an exceptional circumstance before an independent body such as the commission can engage such additional support. The commission will be best placed to make its own judgments in this matter in the light of whatever circumstances prevail at the time.

I am not prepared to accept amendment No. 97 either, as it would unnecessarily limit the investigative expertise that might otherwise become available to the commission in the ranks below superintendent. There is nothing wrong with gardaí investigating gardaí. They do it every day of the week. In a case of dangerous driving causing death, a garda will investigate a garda. I am not against that concept. I am also not against the commission having the faith to use gardaí as investigators where it considers it appropriate to do so. I have never gone down the road that it is either "all duck or no dinner" on this issue or that the creation of the ombudsman commission implies that no garda is ever to be trusted with the investigation of another member of the force. I do not believe that.

In the ordinary course of criminal law, the DPP, unfortunately in some cases, must use gardaí to compile cases against other gardaí for matters like dangerous driving or other offences. It is a sad fact that there have been a few rotten apples, who have been investigated thoroughly by their colleagues. I do not believe gardaí have been pulling their punches in those cases. The vast majority of gardaí believe it would be their duty to investigate one of their colleagues in the ordinary course of criminal law if there were grounds for such an investigation. This happens on the infrequent occasions when members of the Garda Síochána commit criminal offences.

I am not prepared to push the ombudsman commission into a corner where it can only use gardaí in exceptional circumstances. It should be free to choose when it will use them. It is worth noting in this context that where the commission does use members of the Garda Síochána, it can require that they be used under direct supervision or it can grant a wide latitude to the investigators to do the job in a quasi-autonomous way subject to the power of revocation. This is the right way to deal with the matter.

I do not want to set up a massive quango. If I was to say that gardaí should only be involved in these investigations in exceptional circumstances, I would probably have to recruit 150 or 200 investigators. The Northern Ireland ombudsman, Nuala O'Loan, has the enormous advantage that she has the rest of the United Kingdom to aid her in these matters. Somebody doing this function in Ireland does not have such resources at his or her beck and call. Therefore, I do not intend making the work of ombudsman commission more difficult by putting greater impediments to it using members of the Garda Síochána.

The commission will sort out clearly when the public interest is best served by the commission doing the investigation or by it asking members of the Garda Síochána to do so. It is impossible to see how the balance will be struck. However, to say that it could only happen in exceptional cases would mean that I would have to build up a huge investigative mechanism. I am not naive on this. I do not want to put hundreds of people into an office block somewhere waiting for gardaí to make mistakes or to have them running around the country looking for work for themselves.

We must be sensible about the issue. The commission must have a number of options open to it, to do its own investigation, to bring in expertise from outside on an ad hoc basis, if appropriate, or to ask members of the Garda Síochána to carry out investigations. I have great faith that the new institution will approach that choice and discretion in an effective manner that will command public confidence.