Seanad debates

Wednesday, 29 June 2005

Garda Síochána Bill 2004 [Seanad Bill amended by the Dáil]: Report Stage (Resumed).

 

8:00 am

Photo of Michael McDowellMichael McDowell (Dublin South East, Progressive Democrats)

The four amendments in this group comprise a core set of provisions in the Bill. As I said during the Dáil debate on the Morris reports recently, the findings of the tribunal are profoundly disturbing and shocking at times and call for a strong, effective response from the Government. Notwithstanding that a relatively small number of gardaí were involved in what Mr. Justice Morris uncovered in County Donegal, there is no escaping the inevitable conclusion that the management systems and culture currently in place within an Garda Síochána are wholly outdated and inadequate. They have failed to discern the truth in so far as the events in County Donegal are concerned and there is no escaping the reality that there is a compelling case for a radical and wide-ranging reform of the management of an Garda Síochána. I am determined to see this objective achieved through the enactment of the Bill and the speedy implementation of its provisions, especially so in the areas we are now discussing.

I referred to the establishment of a special implementation group under the chairmanship of Senator Maurice Hayes. It will oversee all measures that are required by way of administrative and other actions to put the provisions of the Bill into effect as quickly as possible after it passes through the legislative process. My nightmare is that, having produced this Bill, nothing would then happen or a slow administrative process would take effect, in which I would be constantly reminded by well-meaning officials that there is much work to be done. The Department and its Secretary General were very anxious to put in place a real incentive to ensure the Bill comes into operation as quickly as possible. I thank Senator Maurice Hayes for agreeing to be one of our auditors and to hold the whip to us.

The amendments before the House in this grouping represent a full and head-on response to some of the recommendations contained in the first and second Morris reports. In paragraph 9.36 of the second Morris report, the tribunal reiterates the entire "Duty to Account" section on recommendations in chapter 13 of its first report. The tribunal noted that the Garda Síochána discipline regulations do not make it a breach of discipline to fail to account for duties. It also noted that a statutory compulsion that results in an admission of criminal liability is ruled out as an involuntary statement in any subsequent proceedings. The tribunal observed that there can be no good reason a member of an Garda Síochána should not account for his or her duties. The tribunal took the view that it is of fundamental importance that all members of an Garda Síochána of whatever rank must be obliged to immediately account truthfully for their duties and that a failure to answer or an answer that is less than truthful should be regarded as a major breach of discipline inviting dismissal. This is a point with which I agree completely.

The tribunal's recommendation in this respect was the creation of a special offence of failure to account for duty, that it should be a dismissal offence and that a failure to account truthfully and immediately in respect of duties should result in immediate suspension. As I said in the Dáil, I agree with the clear view of the tribunal that gardaí should be required to account for their actions on duty without delay, procrastination or the need for applications to court. The tribunal made it clear that the existing Garda disciplinary mechanisms were totally inadequate to the task of establishing straightforward facts concerning the whereabouts and actions of individual members of the force. It is essential, therefore, that there should be a clear duty on every garda to account without delay.

It was always my intention to provide for such a duty in the disciplinary regulations, which would be made under the Bill and for which the Bill already provides. Having reflected further on the matter and having taken into consideration the strong language used by Mr. Justice Morris in his report, I have decided to place such a duty on an express statutory footing by way of inclusion in the Bill itself through an amendment introduced on Report Stage. I make no apologies for the lateness of the hour, so to speak. It was too important a matter to leave for another day and must be dealt with in this Bill now. I consulted in detail with the Attorney General and his staff on the new provision and I am sure it is as tight as we can make it, having proper regard to constitutional and European convention on human rights considerations. I agree with the tribunal that this duty, vigorously implemented, should obviate the need for more involved investigations in many cases and should greatly assist the internal management of an Garda Síochána.

The purpose of the amendment is to give direct and immediate effect to the recommendations of the tribunal concerning the Garda duty to account. The new provision means that every member of the force except the Commissioner for obvious reasons, when required to do so by a member of higher rank, must account for his or her action or inaction while on duty. The provision cannot be applied to the Garda Commissioner as there is no higher officer within the force to whom the Commissioner can be made to account. However, I am still alert to the tribunal's comments about the Department of Justice, Equality and Law Reform in paragraph 13.96 of its first report, where it states that in line with its statutory oversight role in respect of an Garda Síochána, the Department must be empowered by knowledge. The report also indicated that the Department had become isolated from the force.

Senators might recall that my immediate response to this point was to introduce new provisions in the Bill for the establishment of an independent Garda inspectorate, the main function of which is to ensure the Minister and the Department will have objective information on matters relevant to the functioning of the force in line with the aims of this Bill to make better provisions in respect of an Garda Síochána. This was done during the passage of the Bill through the Seanad in 2004. Having reflected on the matter, I decided to go further on the tribunal's recommendation in paragraph 13.96 by extending the duty to account requirements proposed in respect of an Garda Síochána to the Garda Commissioner also. As can be seen in the amendment I introduced on Report Stage, this will be achieved by way of the Garda Commissioner being required to account fully to the Government through the Secretary General of the Department of Justice, Equality and Law Reform for any aspect of his or her functions.

I do not wish to examine the matter too deeply in this House. There has been a good deal of mischief-making about this new provision. Considerable time was devoted to it in the other House and the allegation was made that the amendment would enable me as Minister to see any Garda file I wished, on any occasion, for good purpose or bad. I have made my position clear on this issue and do not propose to go into the matter again unless I must. I stand over this scrupulously fair and reasonable provision which is designed for the purposes of a sovereign Government and its duty, through the Minister for Justice, Equality and Law Reform, to account fully to the Oireachtas for the Garda Síochána.

I ask Members to imagine the scandal if the Minister of the day were to be challenged in the Dáil by an Opposition spokesperson or Government backbencher claiming that a file indicating significant malpractice or whatever on the part of a particular person or body was in the possession of the Garda Síochána. Imagine how wrong it would be if the Minister was obliged to admit to the House that he or she had inquired about the matter but was refused access to the files. How could this possibly be right? How can there be documents to which the Government, operating through its most senior public servant in the area of security, could not have access if such was required for the purpose of accountability?

Some will argue that I might use this power to discover the status of a Garda investigation into a cousin of mine, for example. This would be a clear abuse. To do so, however, I would first have to persuade the Secretary General of my Department to collaborate with such an abuse. Second, both he and I would immediately be exposed to the prospect of being swept out of office if the Garda Commissioner chose to write and publish a letter to the Taoiseach or to lift a telephone to a journalist. We would pay the ultimate price for abusing this power.

The alternative view in this matter is that the Government should not, in the last analysis, be master in its own house and have the power, through a responsible public servant, to access Garda files when such access is required. If such access is not possible then the Government is not in charge and there is no effective civilian oversight of the police force. The Garda cannot ultimately have secrets from the democratically elected Government of an independent Irish State. There cannot be a power to refuse information of this type.

The deletion of the original provision in section 40 was consequent on the insertion of the new accountability provisions in section 5. I reintroduced the provisions in section 40 in modified form in the new section 37. In its original form, section 40 required the Garda Commissioner to keep the Minister fully informed about significant developments in policing and security matters. This implemented a recommendation in the report on performance and accountability.

This section also contained a statutory basis for a submission of a report by the Commissioner on a policing or security matter as might be required by the Minister for Justice, Equality and Law Reform. In line with other changes relating to accountability, however, I am proposing some additions to the original section 40 to strengthen it significantly in the light of the second report of the Morris tribunal.

These amendments provide a power which replaces a broadly analogous narrower power which exists, somewhat obscurely, under the Dublin Police Act 1924 for the Minister to appoint a person to carry out a special inquiry into any aspects of Garda administration, practice or procedure which is giving rise to public concern. There may be circumstances, notwithstanding the detailed powers and functions of the ombudsman commission and the new inspectorate and the powers of the Minister for Justice, Equality and Law Reform to request these bodies to act where a specific issue comes within their particular remits, where an issue could require a speedy and relatively informal inquiry by an expert to establish facts with regard to any aspect of the administration, practice or procedure of the Garda Síochána. That is the purpose behind the provisions set out in amendment No. 55.

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