Michael McDowell (Dublin South East, Progressive Democrats)

On the last point, there is no intention to change the pyramid of ranks in the Garda Síochána Bill. The current ranks are Commissioner, Deputy Commissioners, Assistant Commissioners, chief superintendents, superintendents, inspectors, sergeants and gardaí, and there will be reserve gardaí as well if that comes into operation. Those are the only ranks which exist, just in case anybody is of the view that I am proposing to bring in some new variety of commandants, majors and so on for pension purposes. I assure the Senator that will not happen.

I do not want to detain the House overly long on these issues but it is of major importance to me that there should be accountability in principle. It is either a strength or a weakness that having been Attorney General in circumstances where I was not actually given material which I considered to be vital for two functions, first, to advise the Minister of the day and, second, to conduct civil litigation on behalf of the State, that lesson was not lost on me. Without unduly widening the debate I want to put on the record of the House that my predecessor as Minister, Deputy O'Donoghue, at all times wanted access to the same information and was deeply frustrated he could not find out the truth of the Donegal allegations that were accumulating at the time. It is absolutely untrue to suggest he was anxious not to have an inquiry. On the contrary, he was pressing the Attorney General at the time for a way to establish the truth of the Donegal allegations.

The problem was — it remained a problem until we changed the law — that a public tribunal of inquiry necessarily would have completely pulled the rug from under the raft of prosecutions which the Director of Public Prosecutions was apparently contemplating at that time. One could not have a debate in the Dáil and Seanad to establish a tribunal of inquiry and a process of public examination of witnesses if the people charged with misbehaviour in the form of criminal offences were to have a fair trial in the courts. What we eventually did was to change the law to enable a tribunal which was in this difficulty to conduct part of its proceedings in private so the obstacle was taken away from the creation of the Morris tribunal, which is what happened.

I defy anybody to state that, for an Attorney General faced with the proposition that people have the right to due process in regard to their trials, there was an overriding right of the State to sweep that away and compel them to provide all the information which would rip away their rights as accused persons under our system of criminal justice. It was, as the then Minister, Deputy O'Donoghue, informed the Dáil at the time, a matter which deeply frustrated him. Nonetheless, he was obliged to uphold due process and not to embark on an inquiry which would have run into the sands.

The solution was to change the law. However, the underlying feature of all that was — a point on which there is controversy at present — that there was enough information in the possession of the Minister or the Attorney General to know that something was seriously wrong in Donegal. Of course there was. However, the issue was what could legally be done about it. The then Minister, Deputy O'Donoghue, wanted to have a parliamentary inquiry or a tribunal of inquiry. I, as Attorney General, said I accepted a tribunal of inquiry was the preferable way to go forward but asked about the pending criminal prosecutions. That was the issue with which I was faced.

Central to all of that was a right on Deputy O'Donoghue's part to see where the truth lay as best he could between all the various allegations. He had to make a policy decision on these issues. From the point of view of the Attorney General at the time, to try to work out how to defend these civil proceedings and to give decent legal advice to the Minister of the day, it was essential to see all the records. It was wrong, although it was argued in good faith — I am not impugning anybody's honesty — that the members of the Government, who were accountable to the Dáil, were kept away from knowing in extreme detail what the conflicting accounts were and what the situation was on the ground in Donegal by virtue of the fact there was a view that once a file went to the DPP, it could not be disclosed to any other party. That was an extraordinary situation but, unfortunately, that was a view held in good faith at the time. It had to be challenged over a protracted period to change matters.

It is claimed I should have been aware there was some major problem in Donegal. I accept that. Everyone was aware there was a major problem in Donegal. However, the issue was what was to be done about it within the law and while upholding constitutional values. Some people wave around Commissioner Noel Conroy's 37-page abstract on those issues. That abstract did not come to a conclusion and did not reflect any conclusion on the part of Superintendent Carty as to whether there had or had not been a murder in the case of Richie Barron. Instead, it flagged the proposition that further inquiries were ongoing into that issue.

One could not even be sure on that issue. Given the conflicting statements on either side of the issue, it was by no means clear a tribunal of inquiry was appropriate in the circumstances, especially when it would pull the rug from under the criminal prosecutions which that report apparently recommended should be brought against a number of people, including members of the Garda Síochána.

I am conscious that the powers in the Bill seem very strong, and that in malign hands they could be abused. However, there is the equal possibility that wrongdoing could be concealed if these powers did not exist. Every request by the Secretary General of the Department of Justice, Equality and Law Reform to see any scrap of paper from the Garda Síochána is potentially the subject matter of a parliamentary question, and the Minister is obliged to answer as to whether he has in fact invoked these powers. I do not know whether in every particular case the Minister might say it is not in the public interest that the exact nature of his inquiry was made, if it was a security related issue. However, at least he is accountable to Dáil Éireann in the form of a parliamentary question if he does invoke these powers. If his Secretary General were to use these powers, the Secretary General would be accountable in the form of a question put to his Minister.

The other point that must be borne in mind is that anybody who thought anything wrong or bad was afoot would be in a perfect position to avail of the constitutional privilege of going to a member of the Opposition or another member of the Government parties to tell him or her this was a matter which must be raised because the Minister or Secretary General of the day was abusing his or her power. The result for the abuser would be catastrophic if it were found to be an abuse.

I agree with Senator Maurice Hayes and other speakers that the inquiry process provided for in the Bill is very useful. There are occasions when, for example, in regard to the management of informers, it would be better to have a buffer between the Minister and the issues dealt with. For example, if it was alleged that an informer was extremely badly handled with grave public prejudice arising, it might be desirable that, as happened in the case of Shane Murphy, senior counsel, an independent lawyer would be brought in to examine the issue and report on it, rather than having the Minister of the day say "Let me at those files. I will look at this and make my decision on it". In those circumstances, I presume the Secretary General would tell the Minister he was not willing to exercise his power in this regard and that he would suggest to the Minister to appoint an intermediary to protect himself or the State by putting an independent person between the Minister and the investigation.

I take the point made by Senator Jim Walsh about informers generally. Informers are a classic case of an area where a Minister should not inquire. I would never dream of asking the Commissioner, as matters stand, to tell me who his informers were in this or that organisation. I presume he would laugh at me if I was to casually ask him for a list of his informers. However, in the last analysis, there could come a point where it would be relevant whether an informer did or did not exist. I need only point to the recent experience in regard to the allegations made by Sergeant White to Nuala O'Loan, which led to the appointment of a three-person commission headed by the former Secretary to the Government, Dermot Nally, which investigated issues relating to the activities of an informer.

This demonstrates there are occasions when the Government must be in a position to find out what an informer did or did not do. It is an example in which Nuala O'Loan was given what appeared to her to be evidence which at the very least required a response, and the Irish State was in a position to appoint a three-person body to look into that issue. It would have been wrong for the Minister of the day to deal with the matter because he would have been tainted politically by it. It might be argued he was trying to cover up or would not like to hear bad news, if there was bad news at the end of the investigation. There is a great argument for having a three-person commission. They can make inquiries and advise the Minister on whether the claim is credible. These are important powers. The accountability of the Government to the Parliament is all-important. Senator Maurice Hayes and I have decided to declare a truce on the subject of an independent police authority. I have not yet seen a model that recommended itself to me.

I defend myself against the charge of trying to clasp particular ministerial powers to my bosom. If I were a member of the Opposition I would be much more worried if there were an independent policing authority. When confronted with the daily challenges to account for policing matters it would be easy for someone in my position to refer queries to the chair of the independent police authority. From the point of political convenience ignorance is sometimes bliss.

Many of the things that went wrong in Donegal were a result of the pendulum swinging away from the kind of micro-management that existed when Peter Berry was in the Department of Justice, to the isolation identified by Mr. Justice Morris. The pendulum must be brought back to the middle. If one is to be accountable to Dáil Éireann one must be knowledgeable. There is no point in pretending to be accountable if one does not know what is going on. Posing as a politically accountable person is useless if one abdicates one's function of finding out, in extreme circumstances, exactly what is going on.

Members of the Garda Síochána must be in a position to answer questions put by their superiors. Otherwise, discipline does not exist. The Morris tribunal found that inquiries as to a garda's whereabouts were effectively met with unsatisfactory responses. These included the response that representative associations would be consulted before an answer was given, that lawyers would be consulted, or that the person would go on sick leave and not make himself or herself available for interview. I agree with Senator Brian Hayes that it was a shocking state of affairs but that was the truth. Mr. Justice Morris found that to be the case, where people could select what they wanted to tell their superiors after consulting with representative associations and lawyers, or consulting a doctor on whether one's heart would stand up to further interview. This culture is simply not acceptable.

I accept there is scope for bullying in these measures. There will be regulations to counter the exploitation of this and there will be protection for members to prevent them from being exploited by these provisions. In the final analysis, it cannot be the case that one can decide the extent to which one will be truthful to superiors when a legitimate inquiry is made. Neither is it acceptable if one decides one is to be the judge on whether it is a legitimate inquiry. These changes are important.

Mr. Justice Morris thought that I would rely on Circuit Court compulsion as the way to secure compliance with this obligation. It was not my intention to do so. I intended to do so by disciplinary regulations in any event but I am happy to dispel that suggestion by making this provision a core statutory part of this Bill. That is why Chapter 5 is so important.

Mr. Justice Morris's point was that if this ethos had been there we would not be in the position of having a tribunal. People would not dream of going to a pub if they knew that the next day they might be questioned on it, and that prevarication on the response would result in the loss of their job. People will not go to a pub if they know that their job is on the line. People might do so if they believe that prevarication was possible when confronted about misbehaviour of that kind.

If it applies to a matter as comparatively innocent as drinking on duty it certainly applies to planting explosives and fabricating bombs. These things would not have been considered if there was a belief that any form of prevarication could be fatal to a career in an Garda Síochána. I am conscious of the points Members have made on the potential for bullying. I accept that the disciplinary regulations must provide that this provision cannot be abused or used for bullying, and that bullying is a disciplinary offence.

Senator Brian Hayes suggested that only an external officer should be involved. Truthfulness must be an organic thing. One cannot have a situation where it is only the appearance of an external officer that encourages a garda to appreciate the seriousness of the situation and to be truthful. When a sergeant or an inspector asks if a garda was in a pub there must be a definite answer. Replying that one will talk to the Garda Representative Association or one's lawyers is not acceptable. That is what truthfulness involves.