Michael McDowell (Dublin South East, Progressive Democrats)

In the main, the purpose of the amendments made to the ombudsman commission provisions of the Bill was to provide for the appointment of a chairperson of the ombudsman commission. On Committee Stage in the Dáil, I accepted in principle the point made by Deputies Jim O'Keeffe and Joe Costello that it was desirable that one of the members of the commission should act as its titular head and as chairperson in that capacity. The other amendments here, including those to Schedule 4 of the Bill, are consequential upon that change.

The amendment dealing with absences by the chairperson are consequential upon the change to appoint a chairperson to the ombudsman commission. The provisions are standard ones. Similar provisions are to be found in the Competition Act 2002.

Concerning amendments Nos. 70 and 71, the Fine Gael justice spokesperson raised this matter on Committee Stage in the Dáil on the basis that the wording of the subsection might be taken as precluding the ombudsman commission from reporting to the Garda Commissioner when it reports to the Director of Public Prosecutions. This is clearly not meant to be the case. As a consequence, the Parliamentary Counsel redrafted the section to clarify that the Garda Commissioner should be notified about all reports prepared by the ombudsman commission, including those sent to the DPP.

Amendment No. 72 was made on Report Stage in the Dáil in the light of the introduction of the chairperson provision. Originally it was intended that this would be a matter for the commission to decide between its members, with possibly one of the members being designated to deal with management and administration matters generally. With the introduction of the chairperson provisions, I decided that the chairperson should be responsible for the management and control generally of the commission's officers and the administration and business of the commission. It is not merely a titular head of the commission; the public face of the commission will be a chairperson who will also actually manage its business.

There are two schools of thought on this matter of the composition of the office of the ombudsman. Some think there should only be one person in the job, others think that a commission of three would be advantageous. The advantage argued for one person centred on the notion that there should be a publically recognisable face to the ombudsman and that it should not be an anonymous body, the members of which were not known to the public. In so far as a compromise could be reached between the two provisions I have done this in deference to the Opposition spokesmen in the debate on Committee Stage.

Amendments Nos. 73, 74 and 75 arose from the debate on Committee Stage when questions were asked about the appropriateness of including a reference to bankruptcy when a judge could be involved. Having reflected on the matter, I decided to remove the reference to bankruptcy. The other changes were made in the light of that discussion and to bring the provisions into line with similar provisions in other legislation.

Amendment No. 76 was brought forward in the light of the debate on Committee Stage in the Dáil when questions were raised on how the ombudsman commission would conduct its business and related matters concerning the basis for decisions being taken. My amendments on Report Stage are based on other similar legislative provisions such as those in the Competition Act 2002. They provide for such matters as the quorum for meetings and the basis for decision making. This will be by way of a majority of the votes of the members present and voting on the question. Provision is also made in the case of an equal division of votes. In such cases the chairperson, or the member presiding, will have a second or casting vote. Provision is also made for the ombudsman commission to regulate its own procedures.

Regarding amendment No. 77, I gave a commitment on Committee Stage in the Dáil that I would examine this matter on the basis that it might appear that all of the existing staff of the Garda Síochána Complaints Board could be designated by the Minister for service with the new ombudsman commission. That was never going to be the case for several reasons, including that relating to the Government's decision to decentralise the Garda Síochána Complaints Board which the ombudsman commission will replace. That is a decision about which I wish to think further. I mentioned to Senator Hayes that I want to ensure a decentralisation decision does not affect the workings of this board. In any event the term "any" has replaced "every" in case it was argued that every member had to transfer.

Amendments Nos. 80, 81, 82, 84, 96, 97, 98, 100, 105, 107 are technical in nature. They were made on the advice of the Parliamentary Counsel with a view to improving the text. Amendment No. 83 relates to section 71(3), entitled Accountability to other Oireachtas Committees. The point came up during the Committee Stage debate in the Dáil that the wording of this subsection might be unduly restrictive in ruling out comment by the ombudsman commission to an Oireachtas committee, other than the Committee of Public Accounts, on any matter that has been before a court. Accordingly, I amended the wording, substituting the words "is or is likely to be" for the wording "is, has been, or may at a future time be". The amended wording reflects probability rather than the technical possibility that a matter might come before a court as a reason the ombudsman could not comment.

Concerning amendment No. 85, the provision at subsection (10)(b) was added to address an inconsistency between section 70(2) and section 71(10). This was brought to my attention by the Fine Gael justice spokesperson on Committee Stage. It involved the insertion of paragraph (b) into to the text of 71(10).

Amendments Nos. 86 and 87 are simply to transpose subsections (5) and (6) in the Bill so that the provisions in what is now subsection (6) will apply to all reports from the ombudsman commission. Amendments Nos. 88 and 89 relate to the section on the Garda inspectorate and commissions of investigation. These are technical amendments which provided for the inclusion of the Garda inspectorate or an officer of the inspectorate and a commission of investigation in the list of bodies to which disclosures of confidential information could be made. In the latter regard, this amendment was made in response to an observation by the Fine Gael justice spokesperson on Committee Stage that a commission of investigation established under the Commissions of Investigation Act 2004 should be added to the list of bodies in section 73(4).

The purpose of amendments Nos. 90 and 91 was to include the Garda Commissioner as a person to whom a complaint may be made about alleged conduct constituting misbehaviour by a member of the Garda Síochána. This was always the intention. Amendment No. 92 is a technical drafting amendment as advised by Parliamentary Counsel. Amendment No. 93 is necessary to cover the situation where a complaint may be made to a member of the Garda Síochána at or above the rank of chief superintendent at a place other than a Garda station. Its purpose is to ensure that in such cases the Commissioner is notified of the complaint and receives a copy of it. If the complaint was not in writing, a copy of the record of the complaint must be sent to the Commissioner.

Amendment No. 94 is a consequential amendment to amendment No. 90 in the context of the receipt of complaints by the ombudsman commission. Amendment No. 95 deals with the need for the ombudsman commission to notify in writing not only the complainant and the Garda Commissioner of its decision that a complaint is inadmissible, but also the member of the Garda Síochána whose conduct was the subject matter of the complaint. This matter was drawn to our attention by the Garda Representative Association and it is a basic requirement of fairness in such circumstances that the person about whom the complaint is made should be notified.

As a further incentive to members of the force to use the informal resolution procedure, I was impressed with a point made to me in the course of discussions with the Garda Representative Association. That is the purpose behind Government amendment No. 99, which is designed to ensure that if a complaint is resolved informally, and while the Commissioner as the manager of the force is notified of that fact, any record of the complaint held in Garda records must be expunged. This will ensure that, in so far as the member is concerned, his or her agreement to use the informal resolution procedure will not be held against him or her in any way whatsoever in terms of his or her future career and prospects within the force. A garda will not settle cases informally if the record of the complaint is always there, like a ticking bomb, ready to destroy the garda's career at a later stage. He or she would stand on his or her rights and would refuse to apologise in order to stop the row. There would be no informal acceptance of wrongdoing or guarantee not to repeat the behaviour. That kind of response, without a formal complaint, is sometimes necessary.

The Commissioner will already be aware of the fact that a complaint will have been made against a member and of the fact that the ombudsman commission will have decided to rule it admissible or non-admissible. If in the former case the commission intends to deal with the matter under the informal resolution procedure by agreement with the parties, the position will be that the Commissioner will be informed accordingly and that will be the end of the matter. Any records held by the Commissioner about the matter will be expunged.

Section 86 is the subject of amendment No. 101. The purpose of this amendment was to clarify the position relating to reports of investigations of complaints carried out by the Garda Commissioner which are supervised by the ombudsman commission and which reveal that a criminal offence may have been involved. The Bill was silent on this matter, but it now deals with this eventuality in that it provides for the ombudsman commission, after considering a report to the Garda Síochána investigating officer, to either direct a designated officer of the commission to investigate the complaint in accordance with the procedures for investigating complaints involving offences, or to comply with section 93(2) as though the report of the investigating officer of an Garda Síochána had been made to a designated officer of the ombudsman commission under section 93(1), in which case it would be referred to the DPP.

Section 88(10) is the subject of amendments Nos. 102 and 103. Subsection (10), as originally formulated, provided that any information, document or thing provided by a person in accordance with the requirement under subsection (1)(a) or subsection (3)(a), or with a direction under subsection (6) would not be admissible against that person in civil or criminal proceedings. I amended this provision on Report Stage to remove the reference to "civil" as I considered it inappropriate to remove the possibility for civil proceedings, notwithstanding that an admission had been made or that information had been supplied suggesting wrongdoing. While exempting such information for the purposes of criminal proceedings was clearly in order, I could see no basis for having it in the case of civil proceedings.

Take, for example, a case where somebody sues a member of an Garda Síochána for assault and that garda has admitted the assault to the ombudsman commission. To render that admission inadmissible and to require the person who knows it was admitted to prove it by some other means would be an unjustified obstacle to civil justice, as opposed to criminal justice being achieved.

Amendments Nos. 104 and 106 arose in the context of clarifying the status of the report of the ombudsman commission upon its transmission back to the Garda Commissioner for the purpose of taking disciplinary action. Some doubt was expressed regarding the status of such reports when submitted to be dealt with under the disciplinary process. These amendments simply provide for the inclusion in the ombudsman commission report of a statement of the facts established by the investigation and the status to be accorded the commission's report in any disciplinary proceeding.

Section 90 is the subject of amendments Nos. 108 to 114. These were technical amendments advised by Parliamentary Counsel. The intention is that the powers, immunities and privileges associated with the matters referred to subsection (1)(a) to (1)(g) should be exercisable by the ombudsman commission against any person and that the provision of the section should not be limited to a member under investigation, as was originally provided for. Members can understand that a situation could easily arise where a person would resign and therefore cease to be comprehended by the term "member".

On amendment No. 116, in keeping with the other oversight provisions in the Bill, I decided on Report Stage in the Dáil that the Minister's consent should be sought in circumstances where the Garda Commissioner considers the disclosure of information could prejudice a criminal investigation or prosecution, or prejudice the security of the State, or prejudice the safety of any person. There is a clear need for an adjudicator in circumstances where there might be a difference in opinion between the Garda Commissioner and the ombudsman commission. If the Garda Commissioner says something would prejudice a criminal trial and the ombudsman commission says that is rubbish, somebody must decide whether it is a valid ground for objecting. A referee must be put in place. The Minister would seem to be the appropriate person to perform this function because, as we will see in another context, the Minister, through the Secretary General, is entitled to send for any record in the possession of the Garda Síochána. If there is an argument as to whether something would prejudice the security of the State, the Minister will be in a position to look at a file and agree or disagree.

Amendment No. 119 was made on the advice of Parliamentary Counsel. It provides that the publication of any statement made without malice by a member of the ombudsman commission is also privileged for the purpose of the law of defamation. Amendment No. 120 provided for the inclusion of the Garda Síochána inspectorate, along with the Garda Commissioner and the Garda Síochána ombudsman commission, in the consultation process when regulations are being made by the Minister under the Act. It was a consequence of my amendment to the Bill which provided for the establishment of the Garda Síochána inspectorate.