Michael McDowell (Dublin South East, Progressive Democrats)

Section 91 is one of the most important provisions relating to the ombudsman. It concerns the power of the designated investigating staff of the ombudsman commission to carry out searches of Garda stations. Considerable care and attention has been devoted to the provision. Due to the necessity for the ombudsman staff to carry out thorough and searching investigations, it must be balanced with the requirements of State security as Garda stations are repositories for sensitive security related material and information. This power applies to those cases where a complaint involving an offence is concerned. However, the power to search Garda stations is covered by the provisions in section 94 where an investigation can be undertaken by the ombudsman commission directly in the public interest without the necessity for a complaint having been made or on foot of a referral from the Garda Commissioner or by the Minister.

For reasons connected to the security of the State, this section provides that a search of a Garda station will only be carried out on foot of an order made by a member of the ombudsman commission who must also notify the Garda Commissioner and the Minister for Justice, Equality and Law Reform. It is proper that the Commissioner, as head of the force, should be informed of such a serious development. The role of the Minister is more akin to that of arbiter of the competing rights that might be involved. On the one hand, the Commissioner could contend the search would be prejudicial to the security of the State, while the ombudsman may argue the search is necessary for the proper investigation of a serious complaint or that it concerns the death or serious harm to a person as a result of Garda operations.

It is important to note that this procedure does not apply to every Garda station. This point seems to have been lost sight of in the course of earlier discussions on the matter. It will only apply to those stations designated by the Minister as stations that may not be searched except to a specified extent. After considering the matter, the Minister can issue directions allowing the search in whole or in part. This procedure is subject to scrutiny by a designated judge of the High Court who reports to the Taoiseach who is obliged to lay the report before the Houses of the Oireachtas. Provision is made for any sensitive material which could affect State security to be excised from the report.

I understood the point made by the Garda Commissioner that he might have deep State secrets in a filing cabinet in a particular station. If the ombudsman wanted to search there, the secrecy of these materials would then be violated. For those categories of Garda stations, a balancing mechanism is needed. If there is a dispute between the two sides, the Minister will act as referee. However, if there were a malign Minister for Justice, Equality and Law Reform, he or she is subject to the overriding watchdog role of a judge who will say, in a semi-public way, if he or she operated in a fair way. One could argue that the judge should have the entire function, leaving out the Minister. However, it is not right to ask members of the Judiciary to act as referees of first instance in disputes of this kind. Judges do not decide who has their telephones tapped or post examined. They do have a role in ensuring the statutory process of that activity, subject to fixed procedures involving the Minister for Justice, Equality and Law Reform, is upheld. If a Minister abuses his powers, a member of the Judiciary, under this supervisory watchdog role, ensures the constitutional rights of a citizen are not violated.

This is an analogous situation. Sensitive and confidential issues are involved here which is why the whole procedure applies only to cases where offences are involved or in the other circumstances mentioned. Transparency can go so far but in any effective society, some secrets must not be available to public view. Strangers cannot come in and look at these secrets. It is possible that the ombudsman commissioner will retain investigators from outside the jurisdiction. To allow them to walk into the holy of holies and look at the State's deepest secret, is a radical proposition. A balanced structure has been built that if the Garda Commissioner says no to the ombudsman commissioner, the Minister arbitrates. That arbitration process is the subject of supervisory scrutiny by the Judiciary.