Michael McDowell (Dublin South East, Progressive Democrats)

He would not mislead the public in this way. The suggestion that I reacted by surprise or incredulity to his remarks is wholly malicious and completely false. The suggestion that I reprimanded or had a conversation in private with the Commissioner in regard to this issue is completely false. The suggestion that the Commissioner had any involvement, good, bad or indifferent, with the decision to alter the status of the Barron investigation on the PULSE computer is completely untrue, malicious and false.

I put that on the record of the House and invite Senator Higgins to come to the House to retract every word he spoke here last night. I am here to defend myself and will always do so in these circumstances. However, these allegations were made against a person who was not in a position to defend himself in the House. As I said, he is a man of transcendent honesty. I deeply regret that last Friday he was asked to consider his position by Senator Higgins. I regret doubly that yesterday he was the subject of an untrue attack in this House in circumstances which were unworthy of Senator Higgins and unworthy of a Member of the House. The allegation was made in irrelevant circumstances and was out of order on a group of amendments that had nothing to do with the issue on which he spoke. As the House will recall, I had to intervene on a point of order to prevent further irrelevancies of that kind happening. I want it clear in this House that the Commissioner told the absolute truth when he responded to that question in public. The imputation that he did not was an unworthy one.

On the amendments, section 10 in the version of the Bill as passed by the Seanad provides for the appointment by the Government of deputy and assistant Garda Commissioners. However, section 11 which provides for the removal of the Garda Commissioner, appointed under section 9, or a deputy Garda Commissioner, appointed under section 10, makes no provision for the removal of assistant Garda Commissioners, also appointed under section 10. The amendment, which I brought forward on Report Stage, included assistant Garda Commissioners in section 11 for the purpose of their being removed from office. Accordingly, section 11(1) now applies to the three top officer grades in the force and it sets out the grounds on which for stated reasons only they may be removed from office. These relate to, first, failure to perform the functions of the office with due diligence and effectiveness or, in the case of the Commissioner, a failure with respect to the matters set out in section 26(2) of the Bill, second, engaging in conduct that brings discredit on the office or which may prejudice the proper performance of the functions of the office, or, third, such removal being in the best interests of an Garda Síochána. Amendment No. 15 is a consequential amendment to section 10 to make it clear that assistant Garda Commissioners continue in office subject to the provisions of section 11 and not subject to the regulations.

Amendments Nos. 17 to 19, inclusive, and amendment No. 22 are technical drafting amendments proposed by the Parliamentary Counsel who advised that the changes are necessary for the purpose of ensuring consistency with normal drafting conventions. This is to do with the use of word "direct" instead of "require". Amendment No. 23 is a textual drafting amendment proposed by the Parliamentary Counsel to improve the text of section 12(4)(c).

The purpose of amendment No. 20 to subsection (3) of section 12 is to provide additional scope to the person appointed under subsection (2) to conduct an inquiry or to give any other direction which he or she considers necessary, just and reasonable in the circumstances of the case concerned. Every case will have to be considered on its merits. I would not want to restrict the appointed person in terms of the directions he or she may wish to give for the purpose of the inquiry by attempting to set out in the Bill every type of direction that might be necessary.

With regard to amendment No. 21, I indicated on Committee Stage in the Dáil that it would be necessary to include a provision in subsection (4) that where a person fails or refuses to comply with a requirement made by a person appointed by the Government to hold an inquiry, the High Court should have the power, first, to order such persons to comply with that requirement and, second, to make such other order, if any, as it considers necessary and just to enable the requirement to have full effect.

As it stands, the subsection is a punitive provision only. Similar provisions are contained in the Tribunals of Inquiry (Evidence) (Amendment) Act 2002, the Committees of the Houses of the Oireachtas (Compellability, Privileges and Immunities of Witnesses) Act 1997, and the Commission to Inquire into Child Abuse Act 2000. This provision will have the same effect. In other words, it is not simply just a criminal offence not to comply with a direction of an inquiry but something can be done about it. If somebody for whatever reason refuses to do his or her duty under this statute, criminal sanctions are one way of approaching the matter but, as in the case of former Deputy Liam Lawlor, it is also necessary on occasion that the High Court can require somebody to do something, and punish if they do not comply as a contemner — in other words, under the contempt of court arrangements of the High Court. Otherwise, people would brazenly not co-operate with inquiries.

Amendment no. 24 was necessary as a result of changes made in the original text of section 13. Subsection (1) of that section dealt with appointments to the ranks of chief superintendent and superintendent while subsection (2) referred to the remaining ranks of inspector, sergeant and garda.

In light of the strong comments in the second Morris tribunal report, which, in the context of the tribunal's concerns with the fact several members of the Garda Síochána who were severely criticised in its first report continued to serve, recommended that a new means for removing gardaí from office should be considered, I inserted a new provision in section 14 of the Bill providing for summary dismissal by the Commissioner. This applies to the ranks of gardaí from inspector downwards, and it is analogous to the power that is currently vested in the Government in regard to the ranks above inspector. We will come to this matter later in the context of the amendments listed in group 10. Amendment No. 24, therefore, only deals with chief superintendents and superintendents and it means that section 13 as it now stands refers only to those ranks in terms of their appointment and dismissal. In this latter respect, it applies the provisions of sections 11 and 12, which refer to the removal of a Commissioner, deputy Commissioner and assistant Commissioner to those two grades of office holders.