Michael McDowell (Dublin South East, Progressive Democrats)

If we had said that one of the functions of the ombudsman commission was to entertain complaints by gardaí against other gardaí, the force would be mud-wrestled to the floor as an institution and would become an arbitrator and industrial relations kind of theatre of war. I do not want to go down that road. I want the commission to be one that deals with the public's complaints about gardaí.

There is provision in the ombudsman commission terms for it to investigate matters off its own bat. If material came to its intention that it believed to be within its remit, it could act on it. The Minister is also in a position to provide the commission with material and to ask it to investigate a matter. I did not want it to become the ordinary course of events that gardaí having rows with each other and arguments about whether somebody was dealt with appropriately would contact the ombudsman commission and invoke its aid. That would collapse the effectiveness of the commission. However, the representative association asked for that.

The representative association also asked that every complaint, no matter what, against a garda should be investigated by somebody who is not a garda. Does it believe I am about to establish a body 1,000 strong to deal with all complaints made by gardaí against gardaí and to provide that no complaint made to the ombudsman commission could be investigated by a member of the Garda? That is not practical. It is not the law in Northern Ireland and nor is it the practice in most countries that complaints being investigated by force members should not proceed.

Many prosecutions are brought against gardaí by gardaí. The notion that it is impossible for gardaí to deal fairly with other gardaí is untrue. Gardaí have been prosecuted for corruption, drunk driving, theft and other offences. Unfortunately, there are always a few people in a group of that size who infringe criminal law and the offenders are vigorously prosecuted in the majority of cases.

The situation in Donegal was different. It must be conceded, however, that the report of the assistant commissioner, Kevin Carty, recommended a raft of prosecutions, some against fellow members of the force. The situation is not unprecedented.

With regard to how this will work in practice, it is important that we build into the regulations a mechanism whereby a complaint can be made in confidence to somebody who will be a confidential barrier against it leaking to others, except where it becomes necessary for the identity of the complainant to come into focus. For example, in a case where the complainant is the key witness, if somebody confesses to the complainant that he has acted corruptly, the case will never be pressed home unless the complainant is willing to say the person told him he had done such and such. Otherwise, it cannot work.

There must be some degree of reassurance in these cases that where confidentiality is due, there is an element of the seal of the confessional about the matter. Likewise, we cannot allow a situation where a complainant can just say anything he or she likes because that would expose members of the Garda to appalling victimisation by anonymous informants who could act from motives of malice, competitiveness, jealousy, etc., or simple retribution; we cannot have an absolute in that way.