Seán Power (Kildare South, Fianna Fail)

I welcome the opportunity to debate the matter of witness protection in the House. I commend the Labour Party's efforts in drafting the Bill. I do not doubt the intent behind it or the spirit in which it is being offered. On many occasions I have said that far too often Governments are too quick in refusing proposals from the Opposition, either by way of amendments or legislation. I like to think that will change but, unfortunately, regardless of what Government has been in power, I do not believe the views of the Opposition have been exploited to the fullest degree. It is a certain sign of maturity, however, that we can listen to the views of people on the other side of the House and take on board the good points they make. Unfortunately, what is being presented today is not something the Government can accept and I shall explain why.

This Labour Party Bill draws very heavily on Canadian law in this area, although the efficacy of some aspects of Canada's witness protection arrangements is a matter of public debate in that country at present. Apart from a number of specific provisions, which I shall come to later, some of the contents are little different from those which the Government would include in such a Bill if it thought it necessary to legislate for the witness security programme. For reasons which I will set out, however, the Government does not believe this Bill is necessary.

In particular, the Garda Commissioner's advice is that not only is it unnecessary to place the existing witness security programme on a statutory basis, to do so could introduce an element of inflexibility which could hinder Garda efforts. The flexibility of the scheme is vital. The House will appreciate that I cannot go into detail about particular cases but the fact is that the witness security programme is being operated in a significant number of cases at present. Put simply, the advice available to the Government is that this Bill would not help and could hinder its operation.

I will put some context into this debate. As the Supreme Court stated, in an ideal world there would be no need for witnesses in such a programme. The development of the programme is a reflection of the society in which we live. It is a society where, regrettably, there are people who will stop at nothing, including killing, to protect their drugs or other criminal activity. In some cases where criminal prosecutions are taken, it would be very difficult, if not impossible, to proceed without the evidence of accomplices. These are people who themselves have criminal backgrounds. Sometimes these backgrounds include the most serious criminal offences. If accomplices are to be persuaded to give evidence, their lives and those of their families may well be jeopardised. The answer to this dilemma is to offer protection. The benefit to society is that very dangerous criminals are removed from our streets.

Therefore, when we talk about witness protection in the context of the type of scheme envisaged, we are not usually referring to innocents unwittingly or accidentally caught up in gang crime, gun culture and drug dealing but about people with form of their own, so let us keep a sense of perspective. A witness security programme is only for witnesses of a very special hue — willing participants of the criminal underworld who, for whatever reasons, choose to turn on their erstwhile colleagues. I make this key point not for academic reasons but because of the inevitable and inescapable conclusions that follow.

People generally choose to enter witness protection programmes not because of the nature of those programmes but because there is something in it for themselves. The reality is that every possible protection necessary for a witness and his or her family can be, and is already, provided by the Garda Síochána, including financial support, a change of identity, relocation and so on. We do not need legislation for these types of protection measures. In fact, they are already in place under the existing witness security programme. The reason the Garda Síochána does not receive greater and more frequent co-operation from gangland members is not because they doubt the adequacy of protection measures in place within the witness security programme, and still less whether it operates on a statutory basis. Placing the programme on a statutory basis would be highly unlikely to have any effect on the willingness or otherwise of such persons to enter it. The reason co-operation is not forthcoming more often is simply because these people do not want to give it, even when they may already have been the target of murder threats or even murder attempts.

The cold, hard, unpalatable reality for us all is that gangland members live by a peculiar ethic, if I might describe it thus. Respect is measured solely by one's willingness to mete out uncompromising lethal violence in defence of oneself, one's turf and one's criminal enterprises. The only language they speak is the language of violence, the only authority they recognise is the authority of the gun, and the only disgrace they fear is the disgrace of not being seen as the hardest of hard men. For them, life can be cheap. They seem to have a special contempt for the institutions of the State, in particular the Garda, the courts and the criminal justice system. This is not an attractive portrait, but Senators should not lose sight of the fact that it is the reality.

While the Bill is not altogether flawed in its contents, it is at best unnecessary and, for this reason, the Government is compelled to oppose it. Should anyone think I am being unduly dismissive of the Labour Party's efforts, I will highlight briefly how redundant most of its provision are. The criteria for admission to the programme, the factors to be taken into account, the terms of protection, the termination of the protection agreement and change of identity are already part of the existing programme. Furthermore, the prohibition on the disclosure of information about the identity or location of a witness is enshrined in legislation by virtue of section 40 of the Criminal Justice Act 1999. That section even makes it an offence for a person to make inquiries or take steps to discover the identity or whereabouts of a relocated witness.

The Labour Party claims the Bill is needed in these areas because of criticism by the Court of Criminal Appeal. It seems to miss the fundamental point, however. The Court of Criminal Appeal upheld the validity of the operation of the programme and the evidence accruing from it, as did the Supreme Court. In other words, the witness security programme has not only demonstrably contributed to the successful conviction of major criminals but has withstood challenge in the courts.

Following comments in the superior courts, a review by the Garda Commissioner resulted in some enhancements to the programme. The witness security programme now operates according to international best practice in the balancing of the needs of law enforcement with the needs of the protected witness. This necessarily includes ensuring a separation between those responsible for the criminal investigation and those involved in the management of the programme, including admittance to it. In this regard, no member of the Garda crime investigation team has any involvement in the work of evaluating the appropriateness of admittance to the programme. This is to ensure there can be no hint of a possible inducement being offered to the witness and to preserve the independence and consistency of decision making with respect to the operation of the programme. I also have a concern that setting the operation of the programme in statutory stone would unduly interfere with the Garda Síochána capacity to respond quickly, flexibly and proportionately to the often very specific needs of witnesses.

I now return to the two specific features of the Bill which cause me particular concern, namely, the role given to the Director of Public Prosecutions in deciding who to admit to the programme and the type of protection to be provided, and provision for the disclosure of information about a protected person. In dealing with the first of these, section 5 attempts, quite inappropriately in my view, to assign to the DPP a pre-eminent position over and above that of the Garda Commissioner in deciding who to admit to the programme and even such clearly operational matters as the type of protection to be provided. I cannot accept that this is a role for anyone but the Garda Commissioner.

Furthermore, such a provision would inevitably conflict with the statutory role of the DPP as the independent prosecution authority in the State. It would undermine the separation of responsibilities of the Garda Síochána and the DPP in the investigation and prosecution of serious crime. Such a development would be neither wise nor necessary. At present the DPP is consulted on the cases that arise under the present scheme. That is a far cry from making him the deciding authority on all matters relating to the scheme as proposed in the Bill.

The second serious flaw I detect in the Bill arises in sections 13 and 14 which set out circumstances and factors that would justify disclosure of information relating to a protected person, including information sufficient to identify and locate him or her. Let us be clear that these sections have the potential to set at nought the chances of encouraging individuals to enter the programme and give evidence against former comrades. This seems an extraordinary proposition, particularly as any person admitted to the programme is unlikely to be without criminal baggage himself.

The Bill is unnecessary in that most of its provisions already mirror existing non-statutory practices that have withstood legal challenge. The few novel features of the Bill could not only damage the independence of the DPP but could also be likely to act in diametrical opposition to the whole raison d'être of a witness security programme, namely, to encourage those with information to co-operate with the Garda Síochána. The Government is seriously concerned about gangland crime, particularly in the aftermath of recent, shocking murders. These events emphasise the continuing imperative to target responses where they will be most effective. This Bill does not contribute to that response. A functional and effective witness security programme is already in existence for those who wish to avail of it, but most choose not to, for reasons I need not repeat.

A targeted response comes in many forms. Operation Anvil is central to the strategy of the Garda Síochána in combating serious crime, particularly murder. The most recent figures received from the Garda Commissioner in this regard show that from the beginning of the operation in May 2005 to 14 October last, 784 firearms were recovered. Over the lifetime of this and the previous Government, we will have increased the strength of the Garda Síochána by 4,000. The current programme for Government re-affirms the commitment to a Garda strength of 15,000 by 2010. This compares well with the strength of any other police service throughout the world. The Garda budget for this year stands at €1.44 billion, compared to just over €0.9 billion five years ago. The organised crime unit, tasked with targeting organised criminals and disrupting criminal networks, has been strengthened.

A package of crime investigation initiatives was recently launched by senior Garda management and these include the establishment of a crime investigation training faculty at the Garda College to provide a professional, comprehensive training programme for those charged with the management of serious crime investigations. Crucially, as a result of the enactment of the Criminal Justice Act 2007, the Garda Síochána is in a much better position to ensure that those involved in gun crime will be made accountable for their actions. The Act intensifies further the fight against gangland activity on many fronts. These include a tougher bail regime in drugs, firearms and other serious cases; post-release monitoring orders; enhanced penalties for repeat offenders; and changes to the laws of evidence.

There is no point in pretending that the gangs involved in the drug trade, which show such callous disregard for human life, can be made go away overnight. It will require determined, steady and relentless action on the part of everyone involved, and that is exactly what we will continue to support. Unfortunately, however, the Bill before us adds nothing to this task and even risks jeopardising it.

I thank the Labour Party for its work in preparing and presenting this Bill. Everybody across the country would be happy to listen to this debate and would have views on the subject but, for the reasons I have outlined, the Government will not be supporting the Bill.