Michael McDowell (Dublin South East, Progressive Democrats)

By way of background information, I can inform Senators that section 91 is one of the most important in Part 3 of the Bill, dealing with the powers of the investigation staff or ombudsman commission to search Garda stations. It is a carefully worded provision in all respects, particularly in the case of certain Garda stations with sensitive material, written, tangible, or computer-based, relating to the State's security.

The Bill's provisions, as passed by this House, envisage that the regulations be drawn up with the approval of the Government by the Minister for Justice, Equality and Law Reform and the Garda Commissioner. They would specifically designate those Garda stations in which such material, in the form of information, documents or things, would be stored. If the ombudsman commission wished to search those stations, the Minister and the Commissioner would have to be notified, and a search could not proceed, except to the extent specified by the Minister under section 91(3) of the Bill. The Minister's decision in that respect would be subject to review by a designated judge of the High Court. In accordance with section 92 of the Bill, he or she would have the necessary powers relating to access and production of documents in that regard. He or she will make a report to the Taoiseach on the operation of the provisions, and the Taoiseach is obliged to ensure that a copy of the judge's report be laid before each House of the Oireachtas, subject only to the exclusion of any matter relating to the security of the State.

I emphasise that my objective is to keep to an absolute minimum those areas that are off-limits to ombudsman commission investigations. I took great care with the drafting of this provision to achieve a balance between the ombudsman commission's need for the fullest access possible and the requirements of State security. Unlike police forces in many other jurisdictions, the Garda Síochána, in addition to its normal policing functions, is also the security arm of the State. In the UK, that role is separate from the ordinary police force, being in the hands of MI5 and MI6, while in France the organisation is the sûreté. I have always maintained that such procedures are necessary in our case to protect sensitive intelligence sources, for example.

I considered possible alternative approaches, and my good friend, Senator Maurice Hayes, who is very familiar with this area, suggested that one way out of the problem would be to allow the ombudsman commission access to all areas, including those sensitive locations and material, and provide that the Minister for Justice, Equality and Law Reform might prevent the publication of any sensitive security-related material in any subsequent report. That would affect neither the conclusions nor recommendations in that report. Such a provision would operate in conjunction with the agreed protocols on such access drawn up between the Garda Commissioner and the ombudsman commission.

In the final analysis, however, I have decided to stick with the Bill's basic approach, but with some modifications. That is the purpose of the amendment that I tabled on Report Stage in the Dáil. I will return to that point. If, as Senator Tuffy maintains, the ombudsman is to use outsiders only in such instances, that creates a problem. Who are those outsiders who are to root through the deepest secrets of our State? No other security service anywhere in the world says that a group of outsiders may knock on the door and ask to see one's most secret files, including on IRA informers and touts in criminal gangs, where it relates to the security of the State. No other security service is subject to that provision.

I therefore decided to place a positive duty on the Minister of the day to issue directions specifying the part of the document storage facility or Garda station in question that may be searched. A new subsection (6) provides that any ministerial direction may contain such conditions or restrictions as considered necessary in the interests of the security of the State. I also took the opportunity of providing by way of amendment No. 130 that any abuse of the procedure by a member of the Garda Síochána regarding a search under section 99 of a document storage facility will be a serious disciplinary offence. That will also be inserted into the discipline regulations in very stark terms. Anyone trying to hide behind this argument regarding the security of the State in bad faith will commit a very serious offence. If the ombudsman commission makes a complaint in this regard, the Secretary General of the Department could, under the powers assigned to him or her in regard to the procurement of documents, adjudicate on the matter. There would be serious consequences for any garda, of whatever rank, who tries in bad faith to abuse this provision.

That is as much as I can do to address this issue without destroying the confidentiality of information relevant to State security. I have pared the provisions down so that they relate not to entire stations but to parts of a document storage facility, and have assigned a positive duty to the Minister to minimise the applicability of this section. This is balanced by the stipulation that anybody who tries to abuse this provision by storing information in an incorrect file or whatever will face the most condign treatment.

Amendment No. 129 is simply a draft amendment. I draw Members' attention to the fact that section 123, on page 82 of the draft as passed by the Dáil, contained a typographical error. The reference to section 100 in this section should be a reference to section 99. The Clerk of the Seanad has suggested that I should propose a correction along the following lines:

In accordance with Standing Order 121, I request the Cathaoirleach to instruct the Clerk to make a correction in the Bill as passed by the Dáil. The reference in line 30, page 82, to "section 100" should read "section 99".