Michael McDowell (Dublin South East, Progressive Democrats)

This amendment arises out of a key recommendation of the second report of the Morris tribunal. In essence the amendment inserts a new section 14 in the Bill, which in subsection (1) governs the appointment, subject to appropriate regulations, by the Garda Commissioner of persons to the rank of garda, sergeant and inspector respectively.

Subsection (2) is more or less the same as that in section 13(2) as passed by the Seanad.

The rest of the section, dealing with a new summary power of dismissal of such members by the Garda Síochána, is new. This part of the amendment will enable the Garda Commissioner to dismiss a member of the force where the Commissioner has lost confidence in the capacity of that member to discharge his or her duty and where the dismissal is considered necessary to maintain public confidence in the force. The member in question will be informed of the reasons for the Commissioner's opinion and given the opportunity to argue against dismissal. The consent of the Minister will be necessary before the Commissioner actually dismisses the member.

The strength of this power has caused controversy. It provides for exactly the same situation that exists for senior officers. I cannot allow a situation where, if a sergeant and a superintendent or chief superintendent are, for example, engaged in corruption together, for which there is precedent, one of them can be dismissed by the Government but the other can go on sick leave and demand a tribunal of inquiry or appeal his dismissal and take the case to court. If, in the rare cases where it is necessary, a senior officer must leave to maintain public confidence in the force then the same should apply to lower ranks. What is sauce for the goose is sauce for the gander. It will not become the norm because it is not a substitute for the disciplinary process. However, members whose continued presence in the force causes public outcry and debate cannot remain in it. There is no reason the position of members of lower rank should be stronger than that of higher rank.

The new power of dismissal will be separate and distinct from the disciplinary regulations, which will continue to apply in cases of specific allegations of misconduct. It is analogous to the existing broad power of the Government to dismiss a member of superintendent rank or higher where it has lost confidence in the member. The extension of this power to the Garda Commissioner in respect of less senior ranks is a significant change in the overall structure of the force. Essentially, therefore, the provision will enable the Commissioner to dismiss members of the ranks named in broadly the same way the Government can dismiss members of more senior rank using its powers under section 10(4) of the Police Forces Amalgamation Act 1925.

Currently, the Commissioner has no equivalent power and a dismissal can only come about after a full disciplinary inquiry and, in all likelihood, an appeal. The only exception to this is regulation 40 of the Garda's disciplinary code, which provides that, in certain circumstances, the Commissioner can, with the consent of the Minister for Justice, Equality and Law Reform, dismiss a garda, sergeant or inspector without the need for a disciplinary inquiry provided the Commissioner is in no doubt the dismissal is merited and the holding of an inquiry could not affect his or her decision.

While regulation 40 provides for accelerated dismissal, it is part of the disciplinary process and has limited application. The purpose of the new provision is to enable the Commissioner to act outside of the disciplinary regulations in circumstances where he or she no longer has confidence in the capacity of the member to discharge his or her duties and where dismissal is necessary to maintain public confidence in the force. I have received extensive advices regarding this power from the Attorney General and the section has been drafted strictly in accordance with them.