Brian Hayes (Fine Gael)

I move amendment No. 109:

In page 53, lines 21 and 22, to delete paragraph (a).

Amendment No. 109 proposes to delete lines 21 and 22 of section 84. Sections 84 and 85 are linked because they provide the legal provision for the ombudsman commission to deal with a complaint as it wills. This provision deserves some attention. Section 84 stipulates that the commission has three choices in cases where complaints are not resolved informally or if they warrant investigation. The first choice, contained in paragraph (a), is to "refer the complaint to the Garda Commissioner to be dealt with in accordance with section 86." Paragraph (b) provides that the commission may choose to conduct an investigation under section 87. The third choice, under paragraph (c), is to direct a designated officer of the commission to investigate the complaint.

I have no difficulty with paragraphs (b) and (c) but propose, under this amendment, that paragraph (a) should be deleted. The purpose of this Bill, and this section in particular which deals with the establishment of the commission, is that gardaí should not be investigating gardaí. Section 84 provides a significant opt-out for the commission in that it allows it to ask the Garda Commissioner to consider matters. The Minister of State may say these are minor, casual issues that do not require a significant degree of investigation on the part of the commission. However, they might not be minor or casual to the person making the complaint. I am informed that the only guarantee we have regarding an independent investigation is that incidence of death or serious harm will be investigated by the commission. It seems everything else has the potential to be investigated by the Garda.

We are concerned that insufficient thought has been given in allowing the very serious opt-out clause in section 84(a). While we are informed an automatic investigation will take place in the case of death or very serious harm, no such guarantee exists for other matters. Who will determine what is serious? It is not appropriate to give the commission an opt-out allowing gardaí to investigate gardaí.